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INCITEMENT IN THE ERA OF TRUMP AND

CHARLOTTESVILLE

DR. JOANNE SWEENY

*

ABSTRACT

In the wake of several violent rallies in 2016 and 2017, debate over

incitement cases has begun to appear in the news and the courts.

Incitement is a historic exception to the First Amendment that has been

rarely used except in times of political unrest. Unsurprisingly, then, as

political unrest has re-emerged in the wake of Donald Trump’s presidential

campaign, incitement has become relevant once again. The organizers and

attendees of these modern political rallies make ample use of technology,

including ubiquitous media reporting and the ease and anonymity of social

media, and therefore present an odd fit for the more traditional incitement

definition stated in Brandenburg v. Ohio. In particular, this article argues

that the 2016 Trump rally in Louisville and the Unite the Right rally in

Charlottesville show how incitement should evolve to include more

context, and how that context will become essential to properly decide

incitement cases going forward.

I. INTRODUCTION

The June 29, 2018 shooting at a newspaper in Annapolis, Maryland

made headlines not only for the tragic loss of five lives,

1

but because it

came only a few days after both Donald Trump and Milo Yiannopoulos

forcefully criticized journalists. Less than three days before the shooting,

Trump pointed to a journalist at a rally in South Carolina and called him an

“enemy of the people.”

2

That same day, the news website the Daily Beast

*

Many thanks to Ron Krotoszynsky, Tim Hall and Sam Marcosson for their comments

on this article. This article also benefitted immensely from the research assistance provided

by Calesia Henson.

1

Emanuella Grinberg & Dakin Andone, What We Know About the Annapolis

Newspaper Shooting, CNN (June 29, 2018, 9:32 PM), https://www.cnn.com/2018/06/28/us/

what-we-know-annapolis-shooting/index.html [https://perma.cc/3P49-D9ET].

2

Chris Baynes, Maryland Shooting: Trump Ducks Questions over Capital Gazette

Killings, as President’s Attacks on Journalists Come into Focus, THE INDEPENDENT (June

29, 2018, 10:28 AM), https://www.independent.co.uk/news/world/americas/us-politics/mar

yland-shooting-trump-reaction-video-questions-capital-gazette-fake-news-journalistskilled-

a8422451.html [https://perma.cc/XXF3-MHAF] (Trump was also criticized for refusing to

talk to journalists about the shooting and for initially refusing to fly the White House flag at

half-mast). See also Scott Neuman & Colin Dwyer, After Delay, Trump Orders Flags At

(continued)

586 CAPITAL UNIVERSITY LAW REVIEW [47:585

published comments by Yiannopoulos stating, “I can’t wait for the

vigilante squads to start gunning journalists down on sight.”

3

Trump and

Yiannopoulos’ remarks, and the violence that quickly followed, led some

journalists to accuse them of being responsible for the deaths of four

journalists and a newspaper staff member.

4

After the Annapolis shooting,

Yiannopoulos stated that his comment was just him “trolling” the

journalists he wrote to.

5

In contrast, Trump has not toned down his

rhetoric since the Annapolis shooting but still publicly rails against “fake

news”

6

and still calls the media the “enemy of the people.”

7

Did Trump and Yiannopoulis cause the violence in Annapolis? It’s

hard to say, particularly because the shooter had filed a defamation lawsuit

against the paper and he had also sent letters to employees at the paper,

which indicates that the shooting was the result of a personal grudge.

8

But

the anti-media rhetoric propounded by Trump, Yiannopoulis, and others

Half-Staff For Annapolis Attack, NPR (July 3, 2018, 4:44 AM), https://www.npr.org/2018/0

7/03/625536732/white-house-wont-order-flags-at-half-staff-to-honor-annapolis-newspaper-

staff?utm_source=facebook.com&utm_medium=social&utm_campaign=politics&utm_ter

m=nprnews&utm_content=20180703 [https://perma.cc/LZ5J-AJ 4U]; Justin Doom &

Meghan Keneally, Trump orders flags to half-staff for newsroom shooting after White

House initially rejected Annapolis mayor’s request, ABC NEWS (July 3, 2018, 10:17 AM),

https://abcnews.go.com/US/trump-rejects-request-annapolis-mayor-lower-flagsslain/story?i

d=56332864 [https://perma.cc/RN3C-78RU].

3

Davis Richardson, Milo Yiannopoulos Encourages Vigilantes to Start “Gunning

Journalists Down,” OBSERVER (June 26, 2018, 12:32 PM), http://observer.com/2018/06/mil

o-yiannopoulos-encourages-vigilantes-start-gunning-journalists-down/ [https://perma.cc/69

CE-7LBL].

4

Baynes, supra note 2; Max Greenwood, Milo Yiannopoulos: My Call for Shooting

Journalists was Just a “troll”, THE HILL (June 28, 2018, 5:04 PM), http://thehill.com/

homenews/media/394715-milo-yiannopoulos-my-call-for-shooting-journalists-was-just-a-tr

oll [https://perma.cc/7AQD-SEGY].

5

Greenwood, supra note 4.

6

Chris Cillizza, The 11 Most Dangerous Things Donald Trump Said in his Montana

Speech, CNN (July 6, 2018, 5:07 PM), https://www.cnn.com/2018/07/06/politics/donald-

trump-montana-speech/index.html [https://perma.cc/Y8FR-VGZ4].

7

Alexandra Silets, Trump Amps Up Assault on Media, the “Enemy of the People”, CHI.

TONIGHT (Aug. 6, 2018, 6:01 PM), https://news.wttw.com/2018/08/06/trump-amps-assault-

media-enemy-people [https://perma.cc/VFW8-KNXR]. On August 16, 2018, 350

newspapers published editorials criticizing Trump’s rhetoric against the media. See

Madison Park et al., These are the newspapers telling Trump that journalists are not the

enemy, CNN (Aug. 16, 2018, 1:38 PM), https://www.cnn.com/2018/08/16/politics/newspap

er-editorials-trump-list/index.html [https://perma.cc/DM7Q-QHMA].

8

Matt Stevens & Daniel Victor, Annapolis Shooting Suspect Wanted to “Kill Every

Person” in Newsroom, Letter States, N.Y. TIMES (July 2, 2018), https://www.nytimes.com/

2018/07/02/us/annapolis-shooting-woman-harassed.html [https://perma.cc/6ENE-5QVD].

2019] INCITEMENT IN THE ERA 587

(such as Fox News personality Sean Hannity)

9

, which has caused the

public to increasingly distrust the media,

10

may have made the shooter

more likely to carry out his acts. The question is whether these potential

instigators can be held legally responsible, or are their words protected

under the First Amendment?

It would be possible to hold these speakers legally responsible

notwithstanding any First Amendment protection they may claim if their

speech constitutes incitement. Incitement is an exception to First

Amendment speech protections that applies, essentially, when a speaker

causes others to engage in violence or illegal acts.

11

Incitement has been

historically prominent but has mostly languished in the courts since the

1960s and 1970s.

12

All that is changing, however, with the current

political climate. From presidential campaign stops that erupt in violence

13

to alt-right rallies that are meticulously planned to violently engage with

antifascist groups,

14

incitement has repeatedly been in the news and the

courtrooms. Moreover, these violent rallies are continuing,

15

which means

that this issue is likely to continue to come up, making a clearer and

context-driver definition of incitement essential.

9

Hannity: The Fake News Media Have a New Target, FOX NEWS (Apr. 17, 2018),

http://www.foxnews.com/transcript/2018/04/17/hannity-fake-news-media-have-new-target.

html [https://perma.cc/T5LL-R6UH].

10

Jonathan Easley, Poll: Majority Says Mainstream Media Publishes Fake News, THE

HILL (May 24, 2017, 10:10 AM), http://thehill.com/homenews/campaign/334897-poll-

majority-says-mainstream-media-publishes-fake-news [https://perma.cc/6R3P-29SA].

11

Lyrissa Barnett Lidsky, Incendiary Speech and Social Media, 44 TEX. TECH L. REV.

147, 150 (2011).

12

Mark Strasser, Incitement, Threats, and Constitutional Guarantees: First Amendment

Protections Pre- and Post-Elonis, 14 U. N.H. L. REV. 163, 164–71 (2015).

13

Eliott C. McLaughlin, It’s Plausible Trump Incited Violence, Federal Judge Rules in

OK’ing Lawsuit, CNN (Apr. 3, 2017, 11:50 AM), https://www.cnn.com/2017/04/02/politics

/donald-trump-lawsuit-incite-violence-kentucky-rally/index.html [https://perma.cc/GH7R-8

62Z].

14

Kevin Roose, This Was the Alt-Right’s Favorite Chat App. Then Came

Charlottesville, N.Y. TIMES (Aug. 15, 2017), https://www.nytimes.com/2017/08/15/technol

ogy/discord-chat-app-alt-right.html [https://perma.cc/Q8LB-NWY9].

15

Tom Embury-Dennis, Trump supporters filmed hurling sustained abuse at journalists

following Make America Great Again rally, THE INDEPENDENT (Aug. 1, 2018, 10:30 AM),

https://www.independent.co.uk/news/world/americas/trump-florida-rally-supporters-cnn-

jim-acosta-tampa-maga-a8472436.html [https://perma.cc/7QN2-G8FJ]; Jane Coaston, One

year after Charlottesville, the alt-right is gathering again—in Washington, VOX (Aug. 9,

2018, 2:14 PM), https://www.vox.com/2018/8/6/17644776/unite-the-right-2-explained

[https://perma.cc/NMS3-N3M3].

588 CAPITAL UNIVERSITY LAW REVIEW [47:585

Recent scholarly articles have analyzed incitement doctrine in the

realm of online hate speech

16

or support for terrorism

17

but none have truly

conceptually engaged with incitement, which is relevant today than it has

been in decades. This article examines the evolution of the incitement

doctrine, places it within is historical context and shows that, like the anti-

war protests of the 1910s and 1960s, and the civil rights protests (both for

and against) of the 1960s, the current political culture has changed public

discourse so that incitement has, once again, become a viable basis to

reject many speakers’ claims that their incendiary speech is protected

under the First Amendment.

Part I of this article takes a fresh look at incitement using the recent

court cases brought against Donald Trump and the various organizers of

the Charlottesville rally, both of which allege incitement. Part II examines

the history of incitement and its evolution over time. Part II also analyzes

court cases and scholarly articles to provide a working definition of

incitement that incorporates the speech’s context. Parts III though VI then

apply this definition to the Trump rally in Louisville and the Unite the

Right rally, both of which resulted in violence towards protestors. Part VII

concludes that incitement should evolve to include the context of the

speech in question so that, when appropriate, rally organizers will be held

accountable for the violent acts of their supporters.

II. BACKGROUND: TRUMP AND CHARLOTTESVILLE

Both Trump and the organizers of the Unite the Right rally are being

sued by people who were injured at these rallies.

18

Incitement features

prominently in both lawsuits.

19

The Trump lawsuit has been brought by

three activists who were injured at Trump’s March 1, 2016 Louisville rally

and alleges that the activists were punched and shoved by Trump

supporters who were acting on Trump’s command to “get them outta

16

See, e.g., John C. Knechtle, When to Regulate Hate Speech, 110 PENN ST. L. REV.

539 (2006); Laura Leets, Responses to Internet Hate Sites: Is Speech Too Free in

Cyberspace?, 6 COMM. L. & POLICY 287, 315–16 (2001).

17

See, e.g., Alexander Tsesis, Terrorist Speech on Social Media, 70 VAND. L. REV. 651

(2017); Nikolas Abel, United States v. Mehanna, the First Amendment, and Material

Support in the War on Terror, 54 B.C. L. REV. 711, 711 (2013).

18

McLaughlin, supra note 13; Joe Heim & Ann E. Marimow, Charlottesville lawsuit

seeks restrictions on white nationalist groups, WASH. POST (Oct. 12, 2017),

https://www.washingtonpost.com/local/charlottesville-lawsuit-seeks-restrictions-on-white-

nationalist-groups/2017/10/12/4854bbf8-ae03-11e7-be94-fabb0f1e9ffb_story.html?utm_ter

m=.fda24868ffce [https://perma.cc/NC6V-H3Q9].

19

Id.

2019] INCITEMENT IN THE ERA 589

here.”

20

More specifically, Trump has been sued under Kentucky Revised

Code section 525.040, which states that “[a] person is guilty of inciting to

riot when he incites or urges five (5) or more persons to create or engage in

a riot.”

21

Trump’s lawyers have argued that the case should be dismissed

because Trump’s speech is protected by the First Amendment.

22

A

Kentucky district court judge ruled in favor of the plaintiffs on the

incitement issue and an interlocutory appeal of this decision was taken to

the Sixth Circuit.

23

The Sixth Circuit ruled in favor of Trump on the

incitement issue but the plaintiffs are likely to file for a rehearing en banc

and may petition the Supreme Court to hear the case.

24

The Unite the Right rally began as a protest to the removal of a statue

of Confederate General Robert E. Lee from a public park in

Charlottesville, Virginia.

25

On August 12, 2017, alt-right and antifa

26

protestors met in a violent confrontation that culminated in the murder of

an antifa protestor, Heather Heyer.

27

Heyer was killed when an alt-right

20

McLaughlin, supra note 13.

21

KY. REV. STAT. ANN. § 525.040. “Riot” is defined as “a public disturbance involving

an assemblage of five (5) or more persons which by tumultuous and violent conduct creates

grave danger of damage or injury to property or persons or substantially obstructs law

enforcement or other government function.” Id. § 525.010.

22

McLaughlin, supra note 13.

23

Jason Riley, Trump attorneys ask appeals court to dismiss Louisville lawsuit, calling

it “political sabotage”, WDRB.COM (July 24, 2017, 2:50 PM), http://www.wdrb.com/story/

35956114/trump-attorneys-ask-appeals-court-to-dismiss-louisville-lawsuit-calling-it-politic

al-sabotage [https://perma.cc/8SGX-NJUQ].

24

See Nwanguma v. Trump, 903 F.3d 604 (6th Cir. 2018); Kevin Koeninger, Injured

Protesters Take on President Trump in Sixth Circuit, COURTHOUSE NEWS SERV. (June 6,

2018), https://www.courthousenews.com/injured-protesters-take-on-president-trump-in-sixt

h-circuit/ [https://perma.cc/V5V5-QLSF]. For my thoughts on the Sixth Circuit opinion,

see JoAnne Sweeny, Did Trump incite violence at 2016 Louisville campaign Rally? Court

says ‘no,’ I say ‘yes’, LEO WEEKLY (Sep. 26, 2018), https://www.leoweekly.com/leo_author

/joanne-sweeny/ [https://perma.cc/NE85-Z2FG].

25

Sheryl Gay Stolberg & Brian M. Rosenthal, Man Charged After White Nationalist

Rally in Charlottesville Ends in Deadly Violence Video, N.Y. TIMES (Aug. 12, 2017),

https://www.nytimes.com/2017/08/12/us/charlottesville-protest-white-nationalist.html

[https://perma.cc/8KD3-7UKJ].

26

Antifa, is “short for anti-fascist” and it “is the name for loosely affiliated, left-leaning

anti-racist groups that monitor and track the activities of local neo-Nazis.” See Doug

Stanglin, What is antifa and what does the movement want?, USA TODAY (Aug. 23, 2017,

3:48 PM), https://www.usatoday.com/story/news/2017/08/23/what-antifa-and-what-does-

movement-want/593867001/ [https://perma.cc/Z4NJ-NEJM].

27

Stolberg & Rosenthal, supra note 25; Christina Caron, Heather Heyer,

Charlottesville Victim, Is Recalled as a “Strong Woman,” N.Y. TIMES (Aug. 13, 2017),

https://www.nytimes.com/2017/08/13/us/heather-heyer-charlottesville-victim.html?action=

(continued)

590 CAPITAL UNIVERSITY LAW REVIEW [47:585

supporter deliberately drove into a crowd of protestors.

28

For months prior

to the rally, alt-right groups and individuals advertised it and encouraged

attendees to bring weapons, armor and other tactical gear.

29

After the rally,

these same groups and individuals celebrated the results, including Heyer’s

murder.

30

Ten plaintiffs, consisting of “Virginia residents who say they suffered

severe physical and emotional injuries” at the Unite the Right rally, filed

suit.

31

The plaintiffs brought a lawsuit under Virginia Code § 18.2-408

(conspiracy; incitement, etc., to riot) against a variety of groups and

individuals who, they claim, planned the violence in Charlottesville.

32

Section 18.2-408 criminalizes conspiring “with others to cause or produce

a riot, or direct[ing], incit[ing], or solicit[ing] other persons who participate

in a riot to acts of force or violence.”

33

As part of the complaint, the

plaintiffs alleged that the various defendants incited the violence in

Charlottesville through their meticulous planning of the rally and the

violence that occurred there.

34

Almost all of the defendants, some jointly

represented, filed motions to dismiss.

35

The complaint was later amended

click&module=RelatedCoverage&pgtype=Article&region=Footer [https://perma.cc/9BEA-

TMAK].

28

Stolberg & Rosenthal, supra note 25.

29

David Z. Morris, Leaked Chats Show Charlottesville Marchers Were Planning for

Violence, FORTUNE (Aug. 26, 2017), http://fortune.com/2017/08/26/charlottesville-violence-

leaked-chats/ [https://perma.cc/4NQV-A5SJ].

30

Id. See also Matt Novak, Organizer of Neo-Nazi Rally Tweets That Death of Heather

Heyer Was “Payback Time”, GIZMODO (Aug. 19, 2017, 5:30 AM), https://gizmodo.com/org

anizer-of-neo-nazi-rally-tweets-that-death-of-heathe-1798041214 [https://perma.cc/9BHS-T

VKL].

31

David Smith, After Charlottesville: how a slew of lawsuits pin down the far right,

THE GUARDIAN (May 29, 2018, 7:32 AM), https://www.theguardian.com/world/2018/may/2

9/charlottesville-lawsuits-heather-heyer-richard-spencer-alt-right [https://perma.cc/WVR8-9

UNT].

32

The Charlottesville Case, INTEGRITY FIRST FOR AMERICA, https://www.integrityfirstfo

ramerica.org/our-work/case/charlottesville-case [https://perma.cc/8FSM-HRUK]. A similar

lawsuit against the city of Charlottesville and its police was recently dismissed. See Judge

dismisses lawsuit over Charlottesville rally, response, ASSOCIATED PRESS (May 29, 2018,

1:26 PM), https://wtop.com/virginia/2018/05/judge-dismisses-lawsuit-over-charlottesville-

rally-response/ [https://perma.cc/76ZM-RH88].

33

VA. CODE ANN. § 18.2-408 (1950).

34

First Amended Complaint in Sines v. Kessler, No. 3:17-cv-0072-NKM (W.D. Va.

2018) at ¶¶ 4, 6, 21, 25, available at https://www.integrityfirstforamerica.org/si

tes/default/files/First%20Amended%20Complaint%20-%20AS%20FILED.pdf [https://per

ma.cc/B799-V47Q] (hereinafter “Complaint”).

35

Brett Edkins, Charlottesville: An Overview of the Legal Case, INTEGRITY FIRST FOR

AMERICA (Apr. 19, 2018), https://www.integrityfirstforamerica.org/newsroom/charlottesvill

e-case-overview-legal-case [https://perma.cc/NK58-83C8].

2019] INCITEMENT IN THE ERA 591

and new motions to dismiss were filed.

36

Among the claims listed in the

multiple motions to dismiss is the argument that the defendants’ speech is

protected under the First Amendment and the Brandenburg incitement

standard.

37

The lawsuit is ongoing but on July 9, 2018, the district court

denied multiple motions to dismiss the First Amended Complaint and has

allowed the lawsuit to proceed.

38

Neither lawsuit has completed the discovery phase of litigation so no

judge has had the opportunity to apply the incitement doctrine to the

specific facts of either case. However, it is only a matter of time before

courts will have to fully engage with the fact-intensive incitement standard.

As alt-right and Trump rallies continue to have disturbingly violent

overtones, more cases are likely to follow.

39

III. DEFINING INCITEMENT

Incitement remains one of the few existing exceptions to First

Amendment protection that has been consistently upheld by the Supreme

Court.

40

As with other freedom of expression exceptions, it has a

complicated history, which has led to a rather murky definition. The

historical development of incitement is essential to understanding the

incitement doctrine’s purpose and intent.

A. History

The evolution of the incitement doctrine is inextricably entwined with

the history of the United States and its many political movements.

41

Originally, incitement was to overcome First Amendment protections that

were alleged by World War I protestors who were being prosecuted under

36

Alex Swoyer, White supremacist groups cite First Amendment rights in battling

against Charlottesville lawsuit, WASH. TIMES (May 20, 2018), https://www.washingtontime

s.com/news/2018/may/20/white-supremacist-groups-cite-first-amendment-righ/ [https://per

ma.cc/V3QX-MQ7Q]; Sines v. Kessler, 324 F. Supp.3d 765 (W.D. Va. 2018).

37

Id.

38

Edkins, supra note 35.

39

Embury-Dennis, supra note 15. See also German Lopez, Unite the Right 2018 was a

pathetic failure, VOX (Aug. 12, 2018, 7:39 PM), https://www.vox.com/identities/2018/

8/12/17681444/unite-the-right-rally-dc-charlottesville-failure [https://perma.cc/D9U5-JY5

F].

40

Lidsky, supra note 11, at 152.

41

As First Amendment scholar Frederick Schauer noted, “the coverage of the First

Amendment is best understood as the outcome of a competitive struggle among numerous

interests for constitutional attention.” Frederick Schauer, The Boundaries of the First

Amendment: A Preliminary Exploration of Constitutional Salience, 117 HARV. L. REV.

1765, 1788 (2004) (internal footnotes omitted).

592 CAPITAL UNIVERSITY LAW REVIEW [47:585

the Espionage Act.

42

While the war raged on, the police were willing to

arrest any “street corner speaker upon the slightest provocation.”

43

During

this time, the Supreme Court repeatedly held that those protestors whose

speech was intended to disrupt the United States’ war efforts were a “clear

and present danger” and therefore constituted incitement.

44

The Supreme Court decisions using the clear and present danger test

have been criticized for punishing people for making statements that were

not actually violent or dangerous.

45

For example, in Schenk v. United

States, a man was found to have incited his audience because he had

published a leaflet that advocated citizens to “exercise their right to assert

opposition to the draft,” including advocating electing politicians who

opposed the draft.

46

A similarly low threshold for incitement was enforced

by the Supreme Court in a case where a speaker at a socialist rally merely

praised socialism and predicted that it would become more widespread.

47

During this time, the Supreme Court did not delve into what incitement

truly meant and gave protestors scant First Amendment protection. This

deferential attitude began to change when Justice Holmes, who originally

found incitement quite easily in Schenck v. United States,

48

wrote a

persuasive dissent in Abrams v. United States

49

that began to give the clear

and present danger test some teeth and, after World War I was over, the

Court shied away from the clear and present danger test altogether.

50

Today, the seminal case on incitement is the 1969 case Brandenburg v.

Ohio, in which the Supreme Court held that hateful speech is protected by

the First Amendment and incitement, though not protected speech, exists

only when the speech calls for immediate unlawful action.

51

Brandenburg

42

Strasser, supra note 12, at 164–71.

43

John P. Cronan, The Next Challenge for the First Amendment: The Framework for an

Internet Incitement Standard, 51 CATH. U. L. REV. 425, 431 (2002).

44

Strasser, supra note 12, at 164–71.

45

Id. at 169; Alexander Tsesis, Inflammatory Speech: Offensive versus Incitement, 97

MINN. L. REV. 1145, 1159 (2013).

46

Cronan, supra note 43, at 432 (citing Schenck v. United States, 249 U.S. 47 (1919)).

47

Cronan, supra note 43, at 432–33 (citing Debs v. United States, 249 U.S. 211

(1919)).

48

Schenck v. United States, 249 U.S. 47 (1919).

49

250 U.S. 616, 627–28 (1919).

50

Cronan, supra note 43, at 433–34. Holmes’s shift may have been the result of

lobbying by Judge Learned Hand and other constitutional law scholars. See Frederick M.

Lawrence, The Collision of Rights in Violence-Conducive Speech, 19 CARDOZO L. REV.

1333, 1349–50 (1998).

51

395 U.S. 447 (1969) (per curiam).

2019] INCITEMENT IN THE ERA 593

involved a Ku Klux Klan rally that opposed the Civil Rights Movement.

52

In Brandenburg, the Ku Klux Klan rally that was open only to members

and a single cameraman and a single journalist, was held to not constitute

incitement even though the speaker said, “[w]e’re not a revengent [sic]

organization, but if our President, our Congress, our Supreme Court,

continues to suppress the white, Caucasian race, it’s possible that there

might have to be some revengeance taken.”

53

That speech, the Court held,

was not incitement because it constituted general threats that were not

directed at the immediate audience because everyone in attendance had

been invited to the rally.

54

Accordingly, under Brandenburg, even speech

that advocates unlawful or violent acts is not incitement; the speech must

call for imminent action and be likely to produce that action.

55

The Supreme Court later expanded on Brandenburg in the cases of

Hess and Claiborne, both of which took place as part of major social and

political movements––the Civil Rights Movement, and the anti-Vietnam

War movement, respectively.

56

In Hess v. Indiana, the Court overturned

Gregory Hess’s disorderly conduct conviction, stating that the words he

shouted to a crowd during an antiwar demonstration were not incitement.

57

The parties stipulated that the words Hess shouted were “‘We'll take the

fucking street later,’ or ‘We'll take the fucking street again.’”

58

According

to the Court, Hess’s words were not incitement because his words “[were]

not directed to any person or group of persons . . . [so] it cannot be said

that he was advocating, in the normal sense, any action.”

59

In addition, the

Court noted that “there was no evidence or rational inference from the

import of the language, that his words were intended to produce, and likely

to produce, imminent disorder,”

60

which meant that the words did not

constitute incitement.

The final Supreme Court incitement case is Claiborne Hardware. In

N.A.A.C.P. v. Claiborne Hardware Company, Charles Evers, a boycott

organizer for the N.A.A.C.P., threatened boycott violators with

“discipline” and stated: “If we catch any of you going in any of them racist

52

Brandenburg v. Ohio, 395 U.S. 444, 445–46 (1969).

53

Id. at 446.

54

Tsesis, supra note 45, at 1147.

55

395 U.S. 447 (1969) (per curiam).

56

NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982); Hess v. Indiana, 414 U.S.

105 (1973).

57

Hess, 414 U.S. at 107–09.

58

Id. at 107.

59

Id. at 108–09.

60

Id. at 109.

594 CAPITAL UNIVERSITY LAW REVIEW [47:585

stores, we’re gonna break your damn neck.”

61

The Court noted that acts of

violence were reported against boycott violators before Evers made his

speech but not after, which meant that Evers’ words could not have caused

or incited that violence.

62

Along with these causation issues, the Court

held that Evers’ threats, which were part of an “impassioned plea for black

citizens to unify, to support and respect each other, and to realize the

political and economic power available to them,” were not incitement

because they were mere “advocacy” of violence.

63

Since these cases, the Supreme Court has not directly addressed

incitement again. Although lower courts have attempted to apply

Brandenburg to a variety of situations such as online advocacy of violence

and support of terrorism, the result of their efforts has been the creation of

an inconsistent and somewhat convoluted (and rarely-used) doctrine. The

definition of incitement, therefore, is far from clear and in need of

clarification, particularly in light of modern technology.

B. General Definition

Incitement is more than offensive speech that angers an audience.

64

It

is also more than speech that is violent or approves of violence. Indeed,

Brandenburg’s incitement test is “designed to protect political speech and

the abstract advocacy of violence or revolution.”

65

For that reason, mere

“dissident political views” will not constitute incitement.

66

Consequently,

due to concerns of unduly restricting speech, incitement is a narrow

doctrine and it has rarely been successfully used by prosecutors or

plaintiffs seeking a judgment based on a defendant’s speech.

67

61

458 U.S. 886, 902 (1982).

62

Id. at 902–03.

63

Id. at 928.

64

The Supreme Court has repeatedly held that speech that is merely offensive is

protected by the First Amendment. See Tsesis, supra note 45, at 1149.

65

S. Elizabeth Wilborn Malloy & Ronald J. Krotoszynski, Jr., Recalibrating the Cost of

Harm Advocacy: Getting Beyond Brandenburg, 41 WM. & MARY L. REV. 1159, 1168

(2000).

66

Id. at 1196–97. See also KENT GREENAWALT, SPEECH, CRIME, AND THE USES OF

LANGUAGE 116 (1st ed. 1992) (“Because of the expressive value of public ideological

solicitations, protecting them is appropriate unless certain stringent conditions are met that

establish their dangerousness.”).

67

Ronald D. Rotunda, A Brief Comment on Politically Incorrect Speech in the Wake of

R.A.V., 47 SMU L. REV. 9, 12 (1993).

2019] INCITEMENT IN THE ERA 595

According to scholars, incitement is not protected by the First

Amendment, not only because it threatens public safety

68

but also because

it does not contribute to the marketplace of ideas.

69

More specifically, the

violence caused by incitement prevents any competing speech from

occurring, so there can be no reasoned debate on the topic.

70

In other

words, incitement is considered low-value speech, not necessarily because

of the words used, but because the cost of the speech is so high.

71

Similarly, according to freedom speech scholar Steven Gey, incitement “is

outside the scope of First Amendment protection because it operates more

like a physical action than a verbal or symbolic communication of ideas or

emotions.”

72

Brandenburg itself defined incitement as “directed to inciting or

producing imminent lawless action” and “likely to incite or produce such

action.”

73

Hess expanded on Brandenburg to hold that, in order to

determine incitement, courts should examine both to whom the words were

directed, which will show whether there was advocacy of action, and the

words themselves, which will show whether there was any evidence or

rational inference that the words were intended to produce immediate

action.

74

In addition, according to constitutional scholar R. Kent

Greenawalt, the intent of the speaker is relevant because the phrase

“directed to” “implies that the purpose of the speaker is to produce that

result and, perhaps more, that this purpose is evident in the words he

uses.”

75

Unfortunately, Brandenburg and its progeny have left a lot of

questions for others to answer, such as what “imminent” actually means,

68

Tsesis supra note 45, at 1147; Malloy & Krotoszynski supra note 65, at 1213 (“The

proscription is not the product of antipathy toward the speaker’s ideological motivations,

but rather a prudent preventive measure to protect the public from harm.”) (quoting Herceg

v. Hustler Magazine, 814 F.2d 1017 (1987)).

69

Rotunda, supra note 67, at 12–13. Professor David Crump has argued that incitement

speech that does not have “serious literary, artistic, political, or scientific value” or is not

speech “on a matter of public concern” should receive less First Amendment protection.

David Crump, Camouflaged Incitement: Freedom of Speech, Communicative Torts, and the

Borderland of the Brandenburg Test, 29 GA. L. REV. 1, 67 (1994).

70

See Heidi Kitrosser, Containing Unprotected Speech, 57 FLA. L. REV. 843, 853

(2005); Rotunda, supra note 67, at 12.

71

Malloy & Krotoszynski, supra note 65, at 1165.

72

Steven G. Gey, The Nuremberg Files and the First Amendment Value of Threats, 78

TEX. L. REV. 541, 593 (2000).

73

Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).

74

Hess v. Indiana, 414 U.S. 105, 107–09 (1973).

75

GREENAWALT, supra note 66, at 207.

596 CAPITAL UNIVERSITY LAW REVIEW [47:585

the difference between advocacy and incitement,

76

and whether someone

can commit indirect incitement. Considering that the Supreme Court has

not re-examined the incitement standard since the 1960’s and 70s, lower

courts and scholars have grappled alone with Brandenburg’s ambiguities

for decades.

For example, constitutional law scholar Mark Rohr has articulated a

four-part definition of incitement, borrowing from two other scholars: (1)

“the advocacy must call for immediate law violation;” (2) “the immediate

law violation must be likely to occur” (3) there must be an “express

advocacy of law violation;” and (4) there must be “intent to incite or

produce such action.”

77

Professor David Crump has suggested an eight-part test for courts to

apply in incitement cases:

(1) the express words or symbols uttered; (2) the pattern

of the utterance, including any parts of it that the speaker

and the audience could be expected to understand in a

sense different from the ordinary; (3) the context,

including the medium, the audience, and the surrounding

communications; (4) the predictability and anticipated

seriousness of unlawful results, and whether they actually

occurred; (5) the extent of the speaker's knowledge or

reckless disregard of the likelihood of violent results; (6)

the availability of alternative means of expressing a similar

message, without encouragement of violence; (7) the

inclusion of disclaimers; and (8) the existence or

nonexistence of serious literary, artistic, political, or

scientific value.

78

As with the Rohr definition, these eight parts can be roughly grouped into

factors relating to 1) imminence, 2) call to action (as opposed to mere

advocacy), and 3) intent.

79

76

Id.

77

Mark Rohr, Grand Illusion? The Brandenburg Test and Speech That Encourages or

Facilitates Criminal Acts, 38 WILLAMETTE L. REV. 1, 14 (2002) (quoting Bernard Schwartz,

Holmes versus Hand: Clear and Present Danger or Advocacy of Unlawful Action?, 1994

SUP. CT. REV. 209, 237, 256 (1994) (internal quotation marks and citations omitted)).

78

Crump, supra note 69, at 51 (footnote omitted).

79

The final factor, whether the speech has “serious literary, artistic, political, or

scientific value” or is “on a matter of public concern” is an exception; it fits most easily into

the rationale for not protecting incitement at all, which is discussed above. Crump, supra

note 69, at 67–68.

2019] INCITEMENT IN THE ERA 597

As shown below, these three parts of the definition of incitement are

often inconsistently defined and, because incitement cases are intensely

fact-specific, each part of the definition is highly dependent on the context

of the speech. Moreover, because incitement has been used sparingly since

the 1970s, the traditional Brandenburg standard leaves courts ill-equipped

to deal with the modern manifestations of the angry riot. The examples of

the Trump and Unite the Right rallies are therefore a useful tool to further

explore incitement and what it means today in the era of social media and

24-hour news networks that appear to thrive on and amplify conflict.

IV. IMMINENCE

Imminence is a unique and indispensable requirement for incitement.

In order to qualify as incitement, the speech must call for violence or

illegal acts to happen immediately, not at a later time or upon the

satisfaction of a condition.

80

Indeed, the incitement standard “demands

that the speech cause an individual to act without rational thought,” or

“time . . . to digest” any information that would cause them to refrain from

violence or illegal activity.

81

This time element also “ensures that the

danger is in fact not speculative and that the government's interest in

preventing the violence is not pretextual.”

82

Despite the importance of this requirement, courts have not fully

defined it. Neither Hess nor Brandenburg set a time-frame on what makes

something imminent, a deficiency lamented by constitutional law scholar

Erwin Chemerinsky.

83

Several other scholars have attempted to define

imminence. Professors Rohr and Redish have argued that imminence

80

A recent example of conditional speech is the Walking Dead fan-created slogan: “If

Darryl dies, we riot.” See Henry Hanks, ‘Walking Dead’ finale: If Daryl dies, we riot, CNN

(Dec. 1, 2013), https://www.cnn.com/2013/11/29/showbiz/walking-dead-norman-reedus/

index.html [https://perma.cc/EC8C-4BWJ].

81

Malloy & Krotoszynski, supra note 65, at 1169.

82

Id. at 1196–97. Similarly, the Supreme Court has been willing to allow an increased

sentence for “hate crimes,” which essentially increase crime’s sentence based on the

defendant’s concomitant bigoted speech because the assault the defendant committed is not

expressive conduct protected by the First Amendment and the speech he uttered was not

itself made illegal; it was just a factor a judge could consider at sentencing. See Wisconsin

v. Mitchell, 508 U.S. 476, 487 (1993) (contrasting the hate crime law with the “fighting

words” law in R.A.V. v. City of St. Paul, Minn., 505 U.S. 377 (1992), which did make the

words themselves illegal). Accordingly, when words are accompanied by violence, the

Supreme Court has permitted states to attach some form of punishment to that speech.

83

Clay Calvert, Reconsidering Incitement, Tinker and the Heckler’s Veto on College

Campuses: Richard Spencer and the Charlottesville Factor, 112 NW. U. L. REV. ONLINE

109, 121 (2018) (quoting ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND

POLICIES 1049 (5th ed. 2015)).

598 CAPITAL UNIVERSITY LAW REVIEW [47:585

“seems intended to connote closeness in time between the offending

speech and the intended responsive action,”

84

but the evidence for this

requirement is not conclusive or fully defined by courts. For example, in

Hess, the Court noted that Hess’s “later” comment likely meant that the

violence would happen later that day and held that his statements therefore

did not advocate for imminent lawlessness, which indicates that even a few

hours in the future does not satisfy the imminence requirement.

85

However, the Court did not actually specify a timeframe for imminence; it

merely stated that incitement does not exist where there is a call for “illegal

action at some indefinite future time.”

86

Likewise, Claiborne only noted that the alleged incitement must

happen before the violence or unlawful acts.

87

Moreover, the decision in

Claiborne initially used the phrase “within a reasonable period” instead of

“imminent,” which indicated a temporal dimension for the word.

88

Since

Claiborne, lower courts have likewise refused to set a time frame for

imminence. For example, the Ninth Circuit held that a defendant’s advice

to aspiring gang members was unlikely to be acted upon imminently

because the advice was “interspersed at a barbeque and a social party,

while [gang] members were drinking, chatting and listening to music,”

which indicated to the court that any actions by the gang members were

not likely to happen quickly.

89

However, the Court did not set a strict

timeframe for when “imminence” must occur. Similarly, in People v.

Rubin, a California court of appeals defined imminence as “a function of

time, [which] refers to an event which threatens to happen momentarily, is

about to happen, or is at the point of happening” but also noted that “time

is a relative dimension and imminence a relative term, and the imminence

of an event is related to its nature.”

90

When looking at the Trump rally in Louisville, imminence seems

apparent due to the immediacy of the crowd’s response to Trump’s words.

In fact, Trump’s words themselves show that immediate action was called

for. His command to “get ‘em outta here” contains no conditional

84

Rohr, supra note 77, at 17 (citing MARTIN H. REDISH, FREEDOM OF EXPRESSION: A

CRITICAL ANALYSIS 190 (1984)).

85

Id. at 11–12.

86

Hess v. Indiana, 414 U.S. 105, 108–09 (1973).

87

NAACP v. Claiborne Hardware Co. et al., 458 U.S. 886, 927 (1982).

88

Rohr, supra note 77, at 13.

89

McCoy v. Stewart, 282 F.3d 626, 631–32 (9th Cir. 2002).

90

People v. Rubin, 158 Cal. Rptr. 488, 492 (Cal. App. 2d Dist. 1979).

2019] INCITEMENT IN THE ERA 599

language or reference to some future time.

91

He did not tell his audience to

“get ‘em out” if something specific happened, nor did he say to “get ‘em

out” later or after some future event had taken place.

92

His words called

for immediate action, the word “now,” though not stated, was certainly

implied, particularly because, as video of the rally shows, he did not stop

repeating his command until the protestors began to be forced out of the

venue.

93

Indeed, the almost immediate reaction of the crowd to Trump’s

words show the time element of imminence was clearly satisfied. The

scene involved the quintessential angry mob envisioned by Brandenburg

and imminence seems to be easily satisfied using those facts.

On the other hand, imminence is a particularly difficult requirement for

the Unite the Right rally. The speech at issue in that case is the repeated

instructions and comments made by organizers that both encouraged

violence and specifically instructed attendees on how to carry it out.

94

This

speech is problematic under an imminence analysis because, as with most

internet communications, the words were “heard” long after they were

“spoken,”

95

depending on when the reader went online and read the various

posts from the Unite the Right organizers. Indeed, there is really no way of

knowing when those comments were read and by whom; when and who

responded to the organizers’ posts cannot possibly capture everyone who

read them. Consequently, Brandenburg’s sparse definition of incitement is

ill-suited to this asynchronous manner of speech.

Brandenburg was decided long before the internet was created and is

based on a gathering of people in a physical space.

96

In such spaces, there

is a direct interaction of the speaker and the audience; each can see each

other’s reactions and more easily anticipate when and if violence or illegal

acts will occur at that gathering. Websites and social media posts do not fit

this model. The audience is not contained in a room; they come and go

and the speaker usually cannot see them or know how many people have

even heard them.

However, the lag between the message and the audience receiving it is

arguably not the real problem with imminence in the context of the

Charlottesville rally because incitement is concerned with an audience who

91

Protester pushed at Trump rally, CNN, https://www.cnn.com/videos/politics/2017/

04/02/protester-pushed-trump-rally-louisville-kashiya-nwanguma-sot.wlky [https://perma.c

c/5PRA-Q3TS].

92

Id.

93

Id.

94

See generally Roose, supra note 14.

95

Cronan, supra note 43, at 428.

96

Lidsky, supra note 11, at 150.

600 CAPITAL UNIVERSITY LAW REVIEW [47:585

reacts to speech before “good speech” can prevent them from doing so.

Someone who reads a message long after it was written but reacts

immediately arguably still fulfils even the strict timeframe interpretation of

imminence. Case law supports this argument. For example, Paladin

Enterprises found that Hit Man, a book that gave instructions regarding

how to commit murder-for-hire without being caught by police, could

incite violence even though the book was written long before it was

fatefully read by an aspiring hitman.

97

However, the Unite the Right rally

organizers’ speech was acted upon long after it was read and commented

on by readers. There was plenty of time for cooler heads to prevail.

Accordingly, in order to find that organizers’ speech leading up to the

Unite the Right rally meets the definition of imminence, the plaintiffs will

have to rely upon a different interpretation of imminence.

Fortunately for the plaintiffs in the Unite the Right case, there is some

case law and legal scholarship that indicates that imminence may be

determined by factors other than the passage of time. For example, Crump

has argued that imminence actually refers to the “predictability of the

result” and argued that the likelihood of violence is likely a holdover from

the clear and present danger test, which provided Justice Holmes and

Brandeis the opportunity to argue for the importance of the immediacy of

the illegal acts.

98

Indeed, Brandenburg itself requires that speech must be

“likely to incite or produce [violent or illegal] action.”

99

While Brandenburg appears to treat likelihood of violence as a

separate requirement, other courts have applied the likelihood element to

the imminence requirement. More specifically, when examining the

imminence requirement in Rubin, the California Court of Appeals, in

addition to the timing of the statement, also specifically considered the

“likelihood of producing action” or “the practicality and feasibility of the

solicitation [and whether it] was . . . likely to incite or produce

violence.”

100

According to the court, if threats relate to a political

assassination at a demonstration that had already received national

attention, imminence is satisfied even if the event is to take place several

weeks in the future.

101

Other legal scholars have looked at similar factors when discussing

imminence. Greenawalt has recommended a test using the requirement

97

Rice v. Paladin Enterprises, Inc., 128 F.3d 233, 264–65 (4th Cir. 1997).

98

Crump, supra note 69, at 59.

99

Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).

100

People v. Rubin, 158 Cal. Rptr. 488, 493 (Cal. App. 2d Dist. 1979).

101

Id. at 492–93.

2019] INCITEMENT IN THE ERA 601

that the unlawful action happen in the “very near future.

102

According to

Greenawalt, “‘Very near future’ is meant to have a modest degree of

flexibility, account being taken of the seriousness of the crime,

opportunities for intervening speech, and the likelihood that the audience

will have opportunity for critical reflection before the crime is to be

committed.”

103

Looking at these various sources, imminence appears to

rely on both timing and likelihood of violence. The context of the speech,

such as whether the speech relates to a specific event in the future, can

therefore replace the immediacy element historically imposed on

incitement’s imminence requirement.

The likelihood of a violent response to a speaker’s written remarks on

the internet will necessarily require inquiry into the context of the speech,

particularly whether the speech is likely to be taken seriously or seen as a

joke.

104

The internet is a collection of distinct communication models that

carry both benefits and risks to would-be inciters. As noted by one

scholar, social media platforms have “unique features . . . such as the sense

of immediacy they foster, the polarization that they encourage, [and] the

disinhibiting effect of anonymity.”

105

For that reason, Professor Lyrissa Barnett Lidsky has advocated a

modified imminence standard for internet speech that includes several

factors that focus on the foreseeability of the violence, including “the likely

make-up of the target audience, whether there was a prior history of

violence by members of that audience . . . [and] whether the violence took

place with little delay upon receiving the inciting speech.”

106

The final

factor, the lack of delay between reading the speech and acting upon it,

should be further modified to allow for situations where the inciter has

included a specific date for action in her instructions. With such

instructions, it would be unreasonable to require that the audience

disregard the inciter’s orders and act sooner. When looking at the likely

make-up of the audience, courts will have to be sophisticated in their

understanding of the internet and how groups can hide their speech from

the public while making it available to like-minded individuals with

102

GREENAWALT, supra note 66, at 267.

103

Id.

104

See Cronan, supra note 43, at 457; Rubin, 158 Cal. Rptr. at 493 (noting that the

speech was “not made in a jesting or conditional manner, nor was it the outcome of an

improvised piece of braggadocio.”).

105

Lidsky, supra note 11, at 161.

106

Id. at 162 (Lydsky also includes an inquiry into how detailed the instructions are

regarding the violence, which is more closely connected to whether the speech is incitement

or just advocacy, is discussed in full in that part of this article).

602 CAPITAL UNIVERSITY LAW REVIEW [47:585

dangerous intentions. In addition, whether an audience is likely to be

violent may also depend on the issue being discussed; some issues are

more controversial and more likely to raise passions, particularly among

certain groups.

107

These factors certainly apply to the Unite the Right rally. The

organizers reached out to like-minded individuals using various internet

websites and social media platforms including the Daily Stormer,

108

Twitter, Facebook, YouTube, Reddit, 4Chan,

109

and affiliated chatrooms

and chat apps like Discord.

110

These sites and apps were highly restricted

to keep out objectors using a variety of techniques, including proof of the

applicant’s skin color.

111

The alt-right has been effective in the past in

creating alternatives to popular social media platforms so that its followers

have a secret place to congregate with like-minded individuals.

112

These

alternative platforms are often sought out by alt-right members who were

ejected from mainstream social media platforms for violating their terms of

service.

113

Alt-right members also made conscious use of the anonymity

provided by these platforms, using false names and hiding their

identities.

114

With regard to the planning of the Unite the Right rally, these

factors created an echo chamber of like-minded individuals that approved

of violence, making it nearly impossible for other points of view to be

discussed and prevent the violence from occurring. Simply put, there was

no way for “good speech” to correct the volumes of “bad speech” that were

being discussed in these secretive and exclusive forums and which later

caused the violence that occurred at the Unite the Right rally.

107

Cronan, supra note 43, at 462

108

Patrick Strickland, Lawsuits present challenge for neo-Nazi Daily Stormer site, AL

JAZEERA (May 5, 2018), https://www.aljazeera.com/news/2018/05/lawsuits-present-challe

nge-neo-nazi-daily-stormer-site-180504132619786.html [https://perma.cc/V8AG-Q5BY].

109

Roose, supra note 14.

110

Id.

111

Id.

112

Matt Reynolds, The wheels are falling off the alt-right’s version of the internet,

WIRED (July 23, 2018), https://www.wired.co.uk/article/alt-right-internet-is-a-ghost-town-

gab-voat-wrongthink [https://perma.cc/AH3P-7YGZ].

113

Id.

114

Roose, supra note 14. The District Court in the Charlottesville rally case has

recently ruled that Discord must release the identity of one organizer. See Camila

Domonoske, Judge: App User Accused In Planning Charlottesville Rally Can’t Keep

Identity Hidden, NPR (Aug. 7, 2018, 1:18 PM), https://www.npr.org/2018/08/07/6

36308294/judge-app-cant-hide-identity-of-woman-accused-in-planning-charlottesville-rally

[https://perma.cc/J99G-27RA].

2019] INCITEMENT IN THE ERA 603

Imminence should also be found because the alt-right is known for its

violent protests. In the wake of Trump’s campaign and eventual election,

anti-Semitic, anti-Islam and violence against people of color has drastically

increased and the Traditionalist Worker, Ku Klux Klan, neo-Nazi, alt-

right

115

movements have gained traction.

116

The massacre at a Black

church in Charleston, and the subsequent call to remove Confederate flags

from government buildings, also spurred a backlash from these white

supremacist groups.

117

Unite the Right was the first major rally to protest

the removal of a Confederate statue but it was just the next step in a

growing trend of violent alt-right rallies in support of Trump or to protect

the Confederate flag.

118

In 2015 and 2016, several of these rallies ended in

violence.

119

For example, a Traditionalist Worker rally in support of

presidential candidate Trump ended in several people being stabbed as the

alt-right and antifa clashed.

120

The messages written in anticipation of the

115

For simplicity, this article will use “alt-right” as a catchall for white supremacist

groups that share similar ideals.

116

Mark Potok, The Year in Hate and Extremism, SOUTHERN POVERTY L. CTR. (Feb. 17,

2016), https://www.splcenter.org/fighting-hate/intelligence-report/2016/year-hate-and-extre

mism [https://perma.cc/8KU5-JHLA].

117

Christopher Ingraham, All 173 Confederate flag rallies since the Charleston

massacre, mapped, WASH. POST (Aug. 17, 2015), https://www.washington

post.com/news/wonk/wp/2015/08/17/all-173-confederate-flag-rallies-since-the-charleston-

massacre-mapped/?utm_term=.92b6b15bb37c [https://perma.cc/J67N-VXDG].

118

Id. See also Jacey Fortin, The Statue at the Center of Charlottesville’s Storm, N.Y.

TIMES (Aug. 13, 2017), https://www.nytimes.com/2017/08/13/us/charlottesville-rally-

protest-statue.html [https://perma.cc/Q7S6-2YR4].

119

See Ingraham, supra note 117; James Queally, Ku Klux Klan Rally in Anaheim

erupts in violence; 3 are stabbed and 13 arrested, L.A. TIMES (Feb 29, 2016, 5:28 PM),

http://www.latimes.com/local/lanow/la-me-ln-klan-rally-in-anaheim-erupts-in-violence-one

-man-stabbed-20160227-story.html [https://perma.cc/2P5H-5R8X].

120

Stephen Magagnini et al., At least 10 hurt at chaotic, bloody neo-Nazi Rally at

Capitol, SACRAMENTO BEE (June 28, 2016, 1:52 PM), https://www.sacbee.com/news/

local/crime/article86099332.html [https://perma.cc/V48E-Z4HC]. Donald Trump, who was

running for president at the time, notably initially refused to condemn the KKK and only

weakly remonstrated violent demonstrators after facing political pressure. See Camila

Domonoske, Trump Fails to Condemn KKK on Television, Turns to Twitter to Clarify, NPR

(Feb. 28, 2016, 10:31 AM), https://www.npr.org/sections/thetwo-way/2016/02/28/4684

55028/trump-wont-condemn-kkk-says-he-knows-nothing-about-white-supremacists [https:/

/perma.cc/ST5P-HBDA]; Dan Merica, Trump says both sides to says both sides to blame

amid Charlottesville backlash, CNN (Aug. 16, 2017, 1:14 AM), https://www.cnn.

com/2017/08/15/politics/trump-charlottesville-delay/index.html [https://perma.cc/7HW2-3

XXL]; Scott Malone & Jeff Mason, Trump yields to pressure, calls neopressure, calls neo-

Nazis and KKK criminals, REUTERS (Aug. 14, 2017, 5:11 AM), https://www.reuters.com/

article/us-virginia-protests/trump-yields-to-pressure-calls-neo-nazis-and-kkk-criminals-id

USKCN1AU0TW [https://perma.cc/6S5N-ENVK].

604 CAPITAL UNIVERSITY LAW REVIEW [47:585

Unite the Right rally also provide ample evidence that the organizers’

audience was prone to violence.

121

Finally, the specific dates of the Charlottesville rally created a

likelihood that violence would occur on those days.

122

Although many of

the organizers’ communications to their followers happened months before

the rally,

123

the fact that they had organized the rally around a specific date

and encouraged violence on that date makes the violence almost certain

and, therefore, imminent. Moreover, the organizers kept in touch with

their followers during the rally, providing immediate instructions and

organizing the rally participants’ movements so that some of the

organizers’ speech was, in fact, taking place immediately before the

violence occurred.

124

More specifically, one organizer hosted a live feed

that streamed contemporaneously with the rally’s events as they transpired

that weekend.

125

Consequently, imminence is evident for the Unite the

Right rally, both using the timeline and the likelihood interpretation of that

requirement.

V. CALL TO ACTION

The next key requirement for incitement is that the speaker must do

more than merely advocate for violence or illegal acts. Rohr has argued

that incitement implies “some principled, ideological basis for illegal

action in contrast to the usual grounds of private gain or revenge.”

126

Advocacy, in this way, is contrasted from solicitation which is defined as

enticing some to act “for personal benefit or gain.”

127

In his eight-part test,

Crump has argued that courts should consider whether the speaker’s

message could be conveyed through other means such as more general

statements of approval of violence or unlawfulness instead of a call to

violence.

128

Others have argued that the “speech itself [must] create[] a palpable

danger” by convincing the audience to commit an unlawful act or engage

121

Complaint, supra note 34, at 34 ¶ 97.

122

See id. at 29.

123

Dahlia Lithwick, Lawyers vs. White Supremacists, SLATE (Oct. 12, 2017, 5:49 PM),

http://www.slate.com/articles/news_and_politics/jurisprudence/2017/10/two_new_lawsuits

_against_the_organizers_of_charlottesville_s_unite_the_right.html [https://perma.cc/C8Z5-

8F6N].

124

Complaint, supra note 34, at 28 ¶ 80.

125

See id. at 10 ¶ 25.

126

Rohr, supra note 77, at 16–17 (quoting GREENAWALT, supra note 66, at 207–08).

127

Id. at 27 (citing District of Columbia v. Garcia, 335 A.2d 217, 224 (D.C. App.

1975)).

128

See Crump, supra note 69, at 63.

2019] INCITEMENT IN THE ERA 605

in violence when they would not have done so absent the incitement.

129

In

other words, “Brandenburg requires explicit action words; incitement

cannot be implied.”

130

According to Judge Learned Hand in 1917, the

persuasive force of the words used is key in determining incitement: “If

one stops short of urging upon others that it is their duty or their interest to

resist the law, it seems to me one should not be held to have attempted to

cause its violation.”

131

Other early cases drew similar distinctions:

“advocacy, even though uttered with the hope that it may ultimately lead to

violent revolution, is too remote from concrete action” to constitute

incitement.

132

Brandenburg continued the distinction between advocacy and

incitement. More specifically, the Supreme Court held that the speech in

Brandenburg was not actually inciting violence because it used conditional

language: “revengance” was “possible” and “might” be needed.

133

Similarly, in Hess, the speech was not incitement because it was found to

be merely “an emotional exclamation rather than a potentially effective

exhortation to action directed specifically at a particular group of

persons . . . .”

134

Subsequent federal appeals court cases have also echoed these

sentiments. According to the Eighth Circuit, to qualify for incitement, a

statement must go beyond “mere advocacy.”

135

The Fourth Circuit has

limited incitement to situations where the speech that “prepared” and

129

Malloy & Krotoszynski, supra note 65, at 1197. “Brandenburg addresses speech

activity designed to persuade someone to commit an unlawful act, not speech designed to

facilitate the commission of an unlawful act by a person who has already decided to act.”

Id. at 1169.

130

Cronan, supra note 43, at 457 (citing HARRY KALVEN, JR., A WORTHY TRADITION:

FREEDOM OF SPEECH IN AMERICA 121 (Jamie Kalven ed., 1988)).

131

Masses Publ’g Co. v. Patten, 244 F. 535, 540 (S.D. N.Y. 1917), rev’d, 246 F. 24 (2d

Cir. 1917).

132

Noto v. United States, 367 U.S. 290, 297 (1961) (quoting Yates v. United States, 354

U.S. 298, 321–22 (1957)). See also Dennis v. United States, 341 U.S. 494, 545 (1950)

(drawing a “distinction between the statement of an idea which may prompt its hearers to

take unlawful action, and advocacy that such action be taken.”); Yates v. United States, 354

U.S. 298, 321 (1957) (limiting incitement to “indoctrination of a group in preparation for

future violent action, as well as exhortation to immediate action, by advocacy found to be

directed to ‘action for the accomplishment’ of forcible overthrow, to violence as ‘a rule or

principle of action,’ and employing ‘language of incitement . . . .’”), overruled by Burks v.

United States, 437 U.S. 1 (1978).

133

Calvert, supra note 83, at 120.

134

Malloy & Krotoszynski, supra note 65, at 1194.

135

United States v. Buttorff, 572 F.2d 619, 624 (8th Cir. 1978).

606 CAPITAL UNIVERSITY LAW REVIEW [47:585

“steeled the audience to action” and was not “part and parcel of political

and social discourse . . . .”

136

As stated by the California Court of Appeals in People v. Rubin,

incitement is distinguished from “abstract advocacy of indeterminate

measures” and instead constitutes a “concrete solicitation of specific and

determinate acts.”

137

The Court found incitement where “there was

sufficient likelihood of his solicitation being interpreted as a call to arms,

as a preparation and steelment of his group to violent action, as a

systematic promotion of future bloodshed in the streets, rather than as a

communication of ideas through reasoned public discussion.”

138

For that reason, words that merely encourage or assist someone in

committing violence do not constitute incitement; the words need to make

“susceptible” people change their behavior.

139

For example, a man’s

advocacy of future gang violence was deemed to be “very general” and

“abstract” because his advice was “not aimed at any particular person or

any particular time.”

140

Similarly, a group’s petitioning that urged civil

disobedience,

141

and a demonstrator’s harsh criticism of the police

142

were

protected by the First Amendment as not sufficiently advocating violence.

Both movies

143

and songs

144

that describe or depict violence have also been

found to not be incitement because they did not “order or command anyone

to any concrete action at any specific time, much less immediately.”

145

136

Rice v. Paladin Enters., Enterprises, Inc., 128 F.3d 233, 264–65 (4th Cir. 1997).

137

People v. Rubin, 96 Cal. App.3d 968, 975 (1979).

In past years free speech cases have presented two contrasting

images—one, the classroom professor lecturing his students on the need

to resort to terrorism to overthrow an oppressive government

(constitutionally protected speech). . . . [T]he other, the street

demonstrator in the town square urging a mob to burn down city hall

and lynch the chief of police (unprotected criminal incitement to

violence) (internal citations omitted).

Id.

138

Id. at 980 (incitement found where demonstrator held up $500 and offered it as a

reward for injuring a member of the American Nazi party, saying the offer was “deadly

serious.”) Id. at 972.

139

Malloy & Krotoszynski, supra note 65, at 1191.

140

McCoy v. Stewart, 282 F.3d 626, 631–32 (9th Cir. 2002).

141

White v. Lee, 227 F.3d 1214, 1228 (9th Cir. 2000).

142

Resek v. City of Huntington Beach, No. 01-56029, 2002 WL 1418270, at *2 (9th

Cir. July 1, 2002).

143

Yakubowicz v. Paramount Pictures Corp., 536 N.E.2d 1067, 1071 (Mass. 1989).

144

McCollum v. CBS, Inc., 249 Cal. Rptr. 187, 194 (App. 1988) (footnote omitted).

145

Id. at 193.

2019] INCITEMENT IN THE ERA 607

With regard to a violent movie, the Massachusetts Supreme Court

explained: “Although the film is rife with violent scenes, it does not at any

point exhort, urge, entreat, solicit, or overtly advocate or encourage

unlawful or violent activity on the part of viewers.”

146

With regard to song

lyrics, the California Court of Appeals described the requisite call to action

as limited by the music’s unique context:

[M]usical lyrics and poetry cannot be construed to contain

the requisite “call to action” for the elementary reason that

they simply are not intended to be and should not be read

literally on their face, nor judged by a standard of prose

oratory. Reasonable persons understand musical lyrics and

poetic conventions as the figurative expressions which

they are. No rational person would or could believe

otherwise nor would they mistake musical lyrics and

poetry for literal commands or directives to immediate

action. To do so would indulge a fiction which neither

common sense nor the First Amendment will permit.

147

According to these cases, merely approving of illegal or violent acts is

insufficient for incitement. The words must include a “call to action.” In

People v. Bohmer, another California Court of Appeals gave a memorable

example of the difference between mere approval of unlawful acts and

incitement to commit them:

The man who advocates death for all rapists may do so.

However, when he stands before a crowd that holds a like

view and also holds a confessed rapist prisoner and he

shouts, ‘Let's lynch him,’ he will not be shielded by the

First Amendment if the prisoner is then and there

lynched.

148

Although courts are quire proficient at determining what is not a “call

to action,” they have been largely silent as to what is. Looking at the case

law and legal scholarship, two areas emerge that shed some light on this

requirement: detailed instructions and indirect incitement.

146

Yakubowicz, 536 N.E.2d at 1071.

147

McCollum, 249 Cal. Rptr. at 194 (footnote omitted).

148

People v. Bohmer, 46 Cal. App.3d 185, 198 (1975).

608 CAPITAL UNIVERSITY LAW REVIEW [47:585

A. Detailed Instructions

In contrast to mere encouragement, giving specific instructions to an

audience is also likely to be found to be incitement. For example, a

California court of appeals found incitement when a demonstrator used a

megaphone and “called people down” to illegally block railroad tracks and

“ma[de] sure everybody was on the tracks.”

149

Likewise, giving specific

advice of how to break tax laws

150

or commit murder

151

was found to be

incitement when it resulted in individuals breaking the law exactly how

they were advised to do. However, in Herceg v. Hustler Magazine, an

article that explained how to engage in autoerotic asphyxiation (with

several disclaimers) was not incitement because merely describing harmful

conduct does not amount to incitement.

152

The Fourth Circuit case Rice v. Paladin Enterprises, Inc. provides the

most in-depth analysis of what kind of instructions will lead to a finding of

incitement. The Court emphasized that the specific instructions contained

in the book Hit Man could constitute incitement because there was “not so

much as a hint of the theoretical advocacy of principles divorced from

action that is the hallmark of protected speech.”

153

Instead, the Court noted

that the defendant publisher had stipulated that its intent in publishing the

book was to instruct readers on how to commit murder-for-hire and noted

that that stipulation

coupled with the extraordinary comprehensiveness, detail,

and clarity of Hit Man’s instructions for criminal activity

and murder in particular, the boldness of its palpable

exhortation to murder, the alarming power and

effectiveness of its peculiar form of instruction, the notable

absence from its text of the kind of ideas for the protection

of which the First Amendment exists, and the book's

evident lack of any even arguably legitimate purpose

beyond the promotion and teaching of murder, render this

case unique in the law.

154

149

Id. at 196.

150

United States v. Buttorff, 572 F.2d 619, 622–23 (8th Cir. 1978).

151

Rice v. Paladin Enters., Enterprises, Inc., 128 F.3d 233, 242–43 (4th Cir. 1997).

152

Herceg v. Hustler Mag., 814 F.2d 1017, 1023–24 (5th Cir. 1987).

153

Paladin, 128 F.3d at 267.

154

Id. at 266–67 (The publisher also stipulated that he intended for readers to become

successful contract killers from reading the book).

2019] INCITEMENT IN THE ERA 609

The Unite the Right rally most closely resembles this kind of “call to

action.” In addition to encouraging violence at Charlottesville and hosting

violent discussions in anticipation of the rally, the Unite the Right rally

organizers gave specific instructions to their followers.

155

There were

multiple meetings among the various groups that were going to be

participating at the rally where strategies were discussed and

coordinated.

156

In the weeks and days before the rally, the organizers told

their followers who to attack and gave specific advice regarding bringing

weapons and wearing armor.

157

For example, one organizer posted on

Discord that attendees should bring “as much gear and weaponry as you

can within the confines of the law. I’m serious. . . . You still have a few

days to get some protection from Home Depot and bring any guns you

have.”

158

He later posted a photo of himself in tactical gear and with a rifle

and admonished his followers: “I wasn’t kidding when I made an

announcement to bring as much weaponry as legally feasible. . . . This was

discussed with the organizers.”

159

Another defendant told users: “I

recommend you bring picket sign post, shields and other self-defense

implements which can be turned from a free speech tool to a self-defense

weapon should things turn ugly.”

160

Defendant Mosley posted “General Orders” for “Operation Unite the

Right Charlottesville 2.0.”

161

These orders show an intense eye for detail

and planning; everything from recommendations for weapons and armor to

anticipated weather to bathroom locations was addressed.

162

For example,

under the heading “helmets,” participants were advised the following:

“[w]e recommend you bring or wear something to protect your head. DO

NOT include a helmet with a facemask or anything that can be grabbed

onto by others.”

163

The General Orders combined with other instructions

gave followers a specific blueprint for where to go, how to behave, and

155

LEAKED: The Planning Meetings that Led Up to Neo-Nazi Terrorism in

Charlottesville, UNICORN RIOT (Aug. 16, 2017), https://unicornriot.ninja/2017/leaked-

planning-meetings-led-neo-nazi-terrorism-charlottesville/ [https://perma.cc/VM7B-ZD4B].

156

Id.

157

First Amended Complaint, ¶¶ 98–100, 106, Sines v. Kessler, No. 3:17-cv-00072-

NKM (N.D. Cal. Jan. 5, 2018).

158

Complaint, supra note 34, ¶ 108.

159

Id.

160

Id. ¶ 112.

161

Id. ¶ 75.

162

Operation Unite the Right Charlottesville 2.0, (Aug. 10, 2017), https://www.unicorn

riot.ninja/wp-content/uploads/2017/08/OpOrd3_General.pdf [https://perma.cc/S64N-PSU

L].

163

Id. at 5.

610 CAPITAL UNIVERSITY LAW REVIEW [47:585

what to wear. For example, Vanguard America instructed its members “to

arrive at the rally in matching khaki pants and white polos.”

164

Organizers also gave specific advice and instructions regarding how to

avoid getting in trouble with the law.

165

There was an entire online channel

set up to discuss relevant Virginia law.

166

In a strange echo of Trump’s

words, organizers also promised to pay legal fees of those who did run

afoul of the law.

167

Unlike Trump, however, there is evidence that the

organizers actually mobilized to fulfil their promises: Richard Spencer

used his website, altright.com, to post a call for attorneys.

168

The instructions continued during the rally. Followers were instructed

to download Discord, an app that allows users to use voice chat in real

time,

169

so they could receive instructions during the rally.

170

Different

groups were deployed as needed with almost military precision.

171

Clearly,

the organizers did not take a passive role in planning the rally. They did

more than just plan logistics of a meeting of like-minded people; they

planned for a fight and ensured their people were there to take part in it.

More importantly, the Unite the Right rally organizers did more than

advocate for a political position; they orchestrated a violent confrontation.

The level of detail in their instructions, the repeated meetings and

coordination of efforts through social media and the Discord app made

them active participants in the violence that took place in Charlottesville.

More than just giving advice, many of the communications from the

organizers took the form of commands, some of which took place on the

day of the rally. This behavior, like the publisher in Paladin Enterprises,

reaches the level of a “call to action.”

B. Indirect Incitement

Indirect incitement has been analyzed most often in connection with

anti-terrorism laws and hate speech.

172

In addition to those more narrow

164

Complaint, supra note 34, ¶ 115 (One of Vanguard America’s members noted that

this was “a good fighting uniform.”).

165

Id. ¶ 120.

166

Id.

167

Id.

168

Id.

169

See DISCORD, https://discordapp.com/ [https://perma.cc/QNT9-UREY].

170

Leaked: The Planning Meetings, supra note 155.

171

Complaint, supra note 34, ¶¶ 135, 195–98, 207, 212.

172

See Knechtle, supra note 16, at 539; Joseph Jaconelli, Incitement: A Study in

Language Crime, 12 CRIM. L. & PHIL. 245, 248 (2017); Gregory S. Gordon, Music and

Genocide: Harmonizing Coherence, Freedom and Nonviolence in Incitement Law, 50

SANTA CLARA L. REV. 607, 623–24 (2010); Neha Bhat, ‘My Name Is Khan’ and I Am Not A

(continued)

2019] INCITEMENT IN THE ERA 611

areas, scholars have also wrestled with the concept of “advocacy” in a way

that can pave the way for indirect incitement. According to Greenawalt,

the speech must have a “reasonable likelihood” of encouraging the

“commission of the crime” and this requirement “is also meant to be

moderately flexible in relation to the seriousness of the crime.”

173

Greenawalt’s proposed test for public ideological encouragement goes

into greater detail as to what this “encouragement” must include: it

“requires that the speaker urge commission of a specific crime, specificity

being judged in terms of whether members of the audience, without further

instruction, would know in what behavior to engage.”

174

Greenawalt’s

focus on the understanding of the audience opens incitement up to indirect

pleas and even coded language. Using this definition, incitement must

include an inquiry into what effect the words (spoken, written, or

otherwise) are likely to have on their audience.

175

Historically, courts have disagreed as to whether indirect incitement

could be punished under the First Amendment.

176

Learned Hand famously

conceded in a 1917 case that incitement could include indirect instructions

to violate the law:

One may not counsel or advise others to violate the law

as it stands. Words are not only the keys of persuasion, but

the triggers of action, and those which have no purport but

to counsel the violation of law cannot by any latitude of

interpretation be a part of that public opinion which is the

final source of government in a democratic state. . . . To

counsel or advise a man to an act is to urge upon him

either that it is his interest or his duty to do it. While, of

course, this may be accomplished as well by indirection as

Terrorist: Intersections of Counter Terrorism Measures and the International Framework

for Refugee Protection, 15 SAN DIEGO INTL. L.J. 299, 311–12 (2014).

173

GREENAWALT, supra note 66, at 267–68.

174

Id. at 267.

175

Cronan, supra note 43, at 457.

176

See David G. Barnum, The Clear and Present Danger Test in Anglo-American and

European Law, 7 SAN DIEGO INTL. L.J. 263, 268 (2006); Michael Vitiello, What Marc

Antony, Lady Macbeth, and Iago Teach Us About the First Amendment, 2 NEV. L.J. 631,

644–45 (2002). A similar historical example is Henry II’s statement “will no one rid me of

this meddlesome priest,” which caused his nobles to assassinate Thomas Beckett, the priest

in question. See Eric Bradner, Comey goes medieval: 'Will no one rid me of this

meddlesome priest?', CNN (June 8, 2017), https://edition.cnn.com/2017/06/08/politics/will-

no-one-rid-me-of-this-meddlesome-priest/index.html [https://perma.cc/B97K-E3TR].

612 CAPITAL UNIVERSITY LAW REVIEW [47:585

expressly, since words carry the meaning that they impart,

the definition is exhaustive, I think, and I shall use it.

177

Scholars have gone much more in depth with their analysis of indirect

incitement:

In incitement, as in attempted crime, there are delicate

questions of judgement as to exactly at what point the law

should intervene. In the interest of refining that point, a

distinction has sometimes been drawn between incitement

that is “direct” and incitement that is “indirect” so that the

ambit of the relevant law is expanded, or (alternatively)

reduced, by reference to its usual scope.

178

One comparative law scholar has distinguished between direct and

indirect incitement thusly:

The details of what amounts to indirect, as opposed to

direct, incitement (or encouragement) will vary as between

different legal regimes that employ that distinction, or

different provisions within the same regime. But,

generally, it may be said that direct incitement is explicitly

to urge another person to commit the predicate offence.

Indirect incitement is more circumspect, consisting of such

forms as to state that committing a particular crime is

morally justified or to be applauded, the message possibly

being communicated even by the use of metaphor.

179

Examples of indirect incitement include statements “that committing a

particular crime is morally justified or to be applauded” and use of subtle

rhetorical devices such as metaphor or code words.

180

Professor Crump has also emphasized that when courts are too

formalistic in their interpretation of words, they “forg[et] the flexibility of

language, indeed of communication, and . . . also forg[et] that the context

can determine the meaning.”

181

Indeed, Crump envisions speech as a

177

Masses Pub. Co. v. Patten, 244 F. 535, 540 (S.D. N.Y. 1917), noted in Vitiello,

supra note 176 (This conceptualization of incitement was not without its critics, most

notably constitutional law scholar Chafee, who wrote to Learned Hand with the Mark

Anthony example).

178

Jaconelli, supra note 172, at 247.

179

Id. at 248.

180

See id. at 248; Gordon, supra note 172, at 623–24; Leets, supra note 16, at 312.

Coded language will be discussed more fully under solicitation. See infra Section V.C.

181

Crump, supra note 69, at 18.

2019] INCITEMENT IN THE ERA 613

“continuum from unreadable ambiguity to easily decipherable code” that

courts must navigate to reach a correct result under the First

Amendment.

182

According to Crump, both Brandenburg and Hess were

overly concerned with the actual words used and not the speech’s context

that could have constituted what Crump calls “camouflaged incitement.”

183

In contrast to Crump, other scholars have advocated a cautious

approach towards defining indirect or camouflaged incitement.

184

Constitutional law scholar Martin Redesh has advised that only when

words are “sufficiently likely to cause immediate harm” and when

“listeners’ reactions are easily predictable” should courts uphold the

“suppression of a statement which does not on its face urge unlawful

conduct.”

185

According to Redesh, a classic example of indirect incitement

is when someone shouts “‘the man in that jail tortured and killed my

mother’ in front of an unruly mob outside a jail.”

186

Another classic

example is “the indirect but purposeful incitement of Marc Anthony's

oration over the body of Caesar.”

187

Both these examples rely not just on

rhetoric but on the context of the speech, especially what the audience

would understand the speech to mean. Accordingly, under indirect

incitement, the court must

objectively look at what inferences the hearer would

rationally make from the utterance. An utterance has an

indirect, directive illocutionary force if, given the

circumstances under which the speaker made the

utterance, the hearer would rationally infer from the words

182

Id. at 23–25.

183

Id. at 18.

184

Martin H. Redish, Advocacy of Unlawful Conduct and the First Amendment: In

Defense of Clear and Present Danger, 70 CAL. L. REV. 1159, 1178 (1982).

[C]ourts should uphold punishment for indirect advocacy only in the

most extreme circumstances. In other words, a court should be more

willing to allow suppression of a statement that on its face urges another

to commit a crime (“Let’s overthrow the government”; “you should kill

that cop”) than of statements that on their face urge no illegal act but

which are assertions of fact or opinion that might lead another to

commit a crime (“this government represses minorities”; “that cop

harassed me yesterday”). . . .

Id.

185

Id. at 1179.

186

Id.

187

Gerald Gunther, Learned Hand and the Origins of Modern First Amendment

Doctrine: Some Fragments of History, 27 STAN. L. REV. 719, 729 (1975).

614 CAPITAL UNIVERSITY LAW REVIEW [47:585

used that the speaker is urging her to engage in lawless

action.

188

With his eight-part test, Crump goes beyond the actual words spoken

to look at what the words likely meant, relying heavily on context. For

example, Crump looks at the “pattern of the utterance” and code words that

may have a different meaning to the speaker and their audience.

189

To find

such coded meanings, Crump suggests that courts can look at the other

words spoken by the same speaker or even rely on experts familiar with the

code.

190

Crump also emphasizes that the plaintiff must provide evidence

that the audience actually understands the same code as the speaker and

there was no misunderstanding between them.

191

The medium, audience

and surrounding communications are also part of understanding the true

meaning of the contested speech.

192

Shouting to an audience who is

already engaged in violating the law, as in Hess, is a clearer case of

incitement than if the words are written for a scholarly journal.

193

Greenwalt has also argued that context is essential in an incitement

analysis when trying to understand the meaning of the disputed words,

their likely effects, and the intent of the speaker. “Often words are

ambiguous, leaving doubt whether the speaker actually urges the

commission of criminal acts. When the words are plain on their face, it

may still be unclear whether they are intended literally or to make some

rhetorical point.”

194

For that reason, Greenawalt argues using context in

certain circumstances, particularly looking at the crowd and their

susceptibility to react violently in response to the speaker’s words: “This

narrow exception to taking the words on their face or as they would be

understood by the audience recognizes the power of spoken words that fall

short of incitement to provoke emotionally charged audiences into

immediate action.”

195

According to Greenawalt, “[t]he exception could

make a speaker liable for general advocacy of criminal action . . . other

expressions of value . . . and statements of fact . . . when he relies on the

power of his words to move his audience to immediate and grave criminal

188

Bradley J. Pew, Comment, How to Incite Crime with Words: Clarifying

Brandenburg’s Incitement Test with Speech Act Theory, 2015 B.Y.U. L. REV. 1087, 1098

(2015).

189

Crump, supra note 69, at 5555.

190

Id. at 55.

191

Id. at 56.

192

Id.

193

Id.

194

GREENAWALT, supra note 66, at 111.

195

Id. at 274.

2019] INCITEMENT IN THE ERA 615

action.”

196

The Trump rally appears to constitute indirect incitement.

First, as noted above, Trump’s statements were not mere advocacy of

future acts and contained no conditional language. Although Trump

certainly was using impassioned speech at a political event, the words

Trump used––“get ‘em out of here” are phrased as a command, a literal

call to action.

197

However, these words do not explicitly call for illegal

action or violence. He did not command that the crowd hurt the protestors

or become violent; he merely demanded that the protestors be taken from

the building. Trump’s lawyers have consequently argued that Trump did

not call for illegal or violent action and therefore cannot have incited a

crowd to riot.

198

In addition, there is some factual dispute in the lawsuit regarding

whether Trump was speaking to the crowd or to security but the complaint

alleges that Trump was speaking to the crowd and that allegation should

stand at the motion to dismiss stage.

Moreover, there is substantial contextual evidence that Trump was

intending to speak to the crowd or, at the very least, knew that the crowd

was likely to respond to his command. Prior rallies show that Trump often

used protestors to rile up his crowd.

199

He also often insulted protestors

and received cheers and chanting in response.

200

Consequently, even if his

words were spoken to security to actually escort the protestors out, that

does not mean he was not also signaling his audience to react violently

towards the protestors while security officers did their jobs.

Similarly, context can provide the evidence that audience correctly

understood the meaning of Trump’s words. Trump used the phrase “get

him out of here” in several rallies both before and after the Louisville rally.

A variant of that phrase was used in Miami on October 23, 2015,

201

196

Id However, artistic expressions that specifically approve of violence, such as rap

music or violent video games, should not be subject to indirect incitement claims due the

artistic medium’s unique context as an expression of ideas and entertainment. See

McCollum v. CBS, Inc., 249 Cal. Rptr. 187, 194 (App. 1988). Moreover, as discussed

more fully below, these kinds of expressions should also not be subject to indirect

incitement claims unless the author intends their audience to react with violence or illegal

action.

197

McLaughlin, supra note 13.

198

Id.

199

Id.

200

Kate Sommers-Dawes, All the times Trump has called for violence at his rallies,

MASHABLE (Mar. 12, 2016), https://mashable.com/2016/03/12/trump-rally-incite-violence

/#7psFjVVIriqR12 [https://perma.cc/X2HT-HPK7].

201

Jenna Johnson & Mary Jordan, Trump on rally protester: “Maybe he should have

been roughed up”, WASH. POST (Nov. 22, 2015), https://www.washingtonpost.com/

(continued)

616 CAPITAL UNIVERSITY LAW REVIEW [47:585

Birmingham, Alabama on November 21, 2015,

202

Iowa City, Iowa on

January 26, 2016,

203

Warren, Michigan on March 4, 2016,

204

Fayetteville,

North Carolina on March 9, 2016,

205

and Kansas City, Missouri on March

12, 2016.

206

This phrase did not always lead to violence,

207

but it often

did.

208

Most notably, the Birmingham rally, which took place months before

the Louisville rally, involved similar violence against a protestor after

Trump said to “get him outta here.”

209

Trump later defended the crowd’s

violence on Fox News by insulting the protestor and saying “maybe he

should have been roughed up.”

210

Trump’s words were heavily

publicized.

211

It is reasonable to assume that future rally audiences would

news/post-politics/wp/2015/11/22/black-activist-punched-at-donald-trump-rally-in-birming

ham/?noredirect=on&utm_term=.7fb2066f63e7 [https://perma.cc/XN4C-X223].

202

Id.

203

Sopan Deb, Tomato-thrower at Donald Trump rally charged with disorderly

conduct, CBS NEWS (Jan. 27, 2016, 5:18 PM), https://www.cbsnews.com/news/tomato-

thrower-at-donald-trump-rally-slapped-with-disorderly-conduct-charge/ [https://perma.cc/9

V8N-YS2E].

204

Emily Cahn, If you get rough with a protester at a Trump rally, The Donald has

your back, MASHABLE (Mar. 04, 2016), https://mashable.com/2016/03/04/donald-trump-

protesters-court/#MYE39DDW8mqy [https://perma.cc/Y2GQ-2WQ5].

205

Sommers-Dawes, supra note 200.

206

Scott Canon et al., Trump takes on protesters again in Kansas City as police pepper-

spray crowds outside, KAN. CITY STAR (Mar. 13, 2016, 12:49 AM), https://www.kansascity.

com/news/politics-government/article65740747.html [https://perma .cc/65EP-P6XQ].

207

See Deb, supra note 203; Sommers-Dawes, supra note 200.

208

See Ben Mathis-Lilley, A Continually Growing List of Violent Incidents at Trump

Events, SLATE (Apr. 25, 2016), http://www.slate.com/blogs/the_slatest/2016/03/02/a_list_of

_violent_incidents_at_donald_trump_rallies_and_events.html [https://perma.cc/Y93R-VQ

R3]; Rebecca Savransky, Trump supporter punches protester in face at rally, THE HILL

(Mar. 10, 2016, 11:47 AM), http://thehill.com/blogs/ballot-box/presidential-races/272525-

trump-supporter-punches-protestor-in-face-at-rally [https://perma.cc/AB9Z-RCF8]; Canon

et al., supra note 206.

209

Mathis-Lilley, supra note 208; Savransky, supra note 211.

210

Johnson & Jordan, supra note 201.

211

See, e.g., Jeremy Diamond, Trump on protester: “Maybe he should have been

roughed up”, CNN (Nov. 23, 2015, 9:09 AM), https://www.cnn.com/2015/11/22/

politics/donald-trump-black-lives-matter-protester-confrontation/index.html [https://perma.

cc/W5LV-WMUX]; Erin Edgemon, Donald Trump says maybe Birmingham protester

“should have been roughed up”, AL.COM (Nov. 22, 2015), https://www.al.com/news/

index.ssf/2015/11/donald_trump_says_maybe_birmin.html [https://perma.cc/559D-7VX2];

Ryu Spaeth, NEW REPUBLIC: MINUTES, https://newrepublic.com/minutes/124336/maybe-

shouldve-roughed-up-said-donald-trump-black-protester-kicked-punched-rally [https://perm

a.cc/2GA9-YNEQ]; Colin Campbell, Donald Trump on his Black Lives Matter heckler:

“Maybe he should have been roughed up”, BUS. INSIDER (Nov. 22, 2015, 9:10 AM),

(continued)

2019] INCITEMENT IN THE ERA 617

have been aware of the prior violence and Trump’s approval of that

violence. Consequently, Trump’s prior statements advocating violence

against protestors at his rallies, including statements that he wanted to fight

protestors

212

and saying that anyone who did not fight was weak,

213

provides context for all of Trump’s words regarding protestors at his

rallies.

Similarly, Trump’s rhetoric towards journalists shows his willingness

to rile up his crowds and even put people in danger. In addition to calling

the New York Times “a true enemy of the people,”

214

his repeated attacks

against Katy Tur, an MSNBC journalist, at his rallies––even calling her out

by name and insulting her while she was in full view of the crowd

215

––

shows how willing Trump is to parade his “enemies” before his raucous

supporters.

216

Trump’s approval of violence towards protestors and

journalists implies that he wanted them treated violently at future rallies

and any command he gave with regard to protestors therefore arguably

included an instruction to treat the protestors violently.

At the very least, Trump knew that the audience might read his words

that way and that violence could occur in response to his commands

because it had in the past. The fact that he kept using the same rhetoric

despite past violence shows that there was no misunderstanding as to what

his words meant.

217

Accordingly, there is plenty of contextual evidence to

show that Trump’s words were a call to violence and were properly

understood by his audience as such. In fact, both Trump and the Unite the

https://www.businessinsider.com/donald-trump-protester-roughed-up-2015-11 [https://perm

a.cc/46KZ-9HYH].

212

Sommers-Dawes, supra note 200 (“I’d like to punch him in the face”).

213

Eric Bradner, Trump: Sanders “showed such weakness” with #BlackLivesMatter

protesters, CNN (Aug. 12, 2015, 8:33 AM), https://www.cnn.com/2015/08/11/politics/

donald-trump-2016/index.html [https://perma.cc/UJ7Y-WSQU].

214

Brett Samuels, Trump Declares New York Times ‘enemy of the people’, THE HILL

(Feb. 20, 2019), https://thehill.com/homenews/administration/430716-trump-declares-new-

york-times-enemy-of-the-people [https://perma.cc/R862-ETCV].

215

Katy Tur, 'Come here, Katy': how Donald Trump turned me into a target, THE

GUARDIAN (Oct. 11, 2017), https://www.theguardian.com/us-news/2017/oct/11/donald-

trump-katy-tur-election-book-extract [https://perma.cc/9CYF-TWC3].

216

Trump’s recent attacks on Congressional Representative Ilhan Omar have likewise

been accused of potentially inciting violence. See Eli Rosenburg & Kayla Epstein,

President Trump targets Rep. Ilhan Omar with a video of Twin Towers burning,

WASHINGTON POST (Apr. 13, 2019, 10:04 AM), available at https://www.washingtonpost.

com/gdpr-consent/?destination=%2fpolitics%2f2019%2f04%2f13%2fpresident-trump-tar

gets-rep-ilhan-omar-with-video-twin-towers-burning%2f%3f&utm_term=.993ef6f80209.

217

Trump’s knowledge and intent will be discussed more fully below. See infra Section

VI.

618 CAPITAL UNIVERSITY LAW REVIEW [47:585

Right rally organizers’ words can be seen as coded speech, which, as seen

in solicitation cases, can provide even more context for the words used at

these rallies.

C. Solicitation

A related area where courts have examined context is in solicitation

cases. Solicitation and incitement have a complex, often convoluted

relationship. Solicitation is treated as a crime by the Model Penal Code,

defined as follows:

A person is guilty of solicitation to commit a crime if

with the purpose of promoting or facilitating its

commission he commands, encourages or requests another

person to engage in specific conduct that would constitute

such crime or an attempt to commit such crime or would

establish his complicity in its commission or attempted

commission.

218

“Incitement to riot” is also a crime in several jurisdictions. Under the

United States Code, inciting a riot

includes, but is not limited to, urging or instigating other

persons to riot, but shall not be deemed to mean the mere

oral or written (1) advocacy of ideas or (2) expression of

belief, not involving advocacy of any act or acts of

violence or assertion of the rightness of, or the right to

commit, any such act or acts.

219

The overlap between these two crimes is obvious and even the crime

of incitement differs substantially from the requirements of Brandenburg.

It is therefore no wonder that courts have struggled with examining

solicitation under the First Amendment and differentiating it from

incitement.

220

To create a distinction, some scholars remove solicitation

from the First Amendment’s incitement standards by treating solicitation

218

MODEL PENAL CODE § 5.02 (2011).

219

18 U.S.C. § 2102(b) (2018).

220

Indeed, Brandenburg itself dealt not with an incitement or solicitation criminal

statute, but a “criminal syndicalism” statute that prohibited advocating “the duty, necessity,

or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of

accomplishing industrial or political reform and for voluntarily assembling with any

society, group, or assemblage of persons formed to teach or advocate the doctrines of

criminal syndicalism.” Brandenburg v. Ohio, 395 U.S. 444, 444–45 (1969) (internal

quotation omitted).

2019] INCITEMENT IN THE ERA 619

as an act, rather than speech. For example, Greenawalt has argued that

“urgings to action,” if sufficiently “situation-altering,” are more than just

words: they are “efforts to do things” and therefore not covered by the First

Amendment.

221

Several other crimes can also fit this description: threats,

harassment, and assault all treat words as actions that are beyond the

protection of the First Amendment and none of them rely on

Brandenburg.

222

Another scholar, Thomas Healy, has differentiated between incitement

and solicitation by focusing on the kinds of words used for each, stating

that, in contrast to advocacy of unlawful action, solicitation is a related

category of speech to which Brandenburg does not apply.

223

More

specifically, Healy has limited solicitation to “commanding” that a crime

be committed whereas incitement includes “inducing or persuading.”

224

According to Healy, if there is no evidence of a command to commit a

crime, Brandenburg should apply.

225

Constitutional scholar Eugene Volokh has contrasted solicitation

(“urging someone to kill a specific person”) with protected speech of

“urging killing in the abstract,” typically limited to certain groups and not

individual people.

226

Indeed, the targeting of a specific person, for

example, through doxing, may turn the expression of “an abstract political

idea” into “the solicitation of a crime.”

227

However, courts often treat solicitation and incitement as synonymous,

particularly if the facts of the case involve only verbal encouragement to

commit a crime.

228

For example, Learned Hand concluded that solicitation

221

GREENAWALT, supra note 66, at 113 (Greenawalt focuses on “situation-altering”

words because they “often change the normative situation to a degree by providing a reason

to act somewhat stronger than a known but unexpressed wish.”).

222

See Frederick Schauer, The Boundaries of the First Amendment: A Preliminary

Exploration of Constitutional Salience, 117 HARV. L. REV. 1765, 1774, 1783 (2004); Paul

T. Crane, “True Threats” and the Issue of Intent, 92 Va. L. Rev. 1225 (2006).

223

Thomas Healy, Brandenburg in A Time of Terror, 84 NOTRE DAME L. REV. 655, 669

(2009).

224

Id. at 671.

225

Id.

226

Eugene Volokh, The “Speech Integral to Criminal Conduct” Exception, 101

CORNELL L. REV. 981, 993–94 (2016).

227

Malloy & Krotoszynski, supra note 65, at 1166.

228

See Bruce Braun et al., www.commercial_terrorism.com: A Proposed Federal

Criminal Statute Addressing the Solicitation of Commercial Terrorism Through the

Internet, 37 HARV. J. ON LEGIS. 159, 179–80 (2000). This conflation may come from the

history of incitement law; courts used solicitation to justify their use of the “clear and

present danger” test. See Volokh, supra note 226, at 989.

620 CAPITAL UNIVERSITY LAW REVIEW [47:585

requires express advocacy of criminal conduct.

229

More recently, in United

States v. White, the Seventh Circuit held that criminal solicitations are not

protected by the First Amendment and quoted Chaplinsky v. New

Hampshire, which discusses incitement, not solicitation.

230

Similarly, the

Louisiana Supreme Court failed to make a doctrinal distinction between

incitement and solicitation, instead giving lip service to Brandenburg and

then finding that the solicitation statute easily meets it requirements.

231

Other courts treat incitement and solicitation as different kinds of

unlawful speech or unlawful speech-acts, both of which are not covered by

the First Amendment.

232

According to a California Court of Appeals, for

example, “[t]he facts and circumstances which differentiate advocacy of

crime from solicitation of crime are those which differentiate advocacy of

abstract doctrine from advocacy of incitement to unlawful action.”

233

The

Ninth Circuit has similarly held that solicitation is not protected by the

First Amendment “where speech becomes an integral part of the

crime . . . even if the prosecution rests on words alone.”

234

According to the Seventh Circuit in White, it is the intent that turns

solicitation into an act that is not protected by the First Amendment; if the

defendant had the intent that his audience would harm another, then

solicitation has occurred and “[n]o act needed to follow, and no harm

needed to befall” the potential victim.

235

Therefore, according to the

Seventh Circuit, for criminal solicitation, no acts need to be committed

other than the speech itself because the speech becomes an act that is not

covered by Brandenburg or the First Amendment.

236

229

Geoffrey R. Stone The Origins of the “Bad Tendency” Test: Free Speech in

Wartime, 2002 SUP. CT. REV. 411, 430–31 (2002).

230

United States v. White, 698 F.3d 1005, 1016 (7th Cir. 2012). As discussed below,

White deals with a purely verbal criminal solicitation case. See People v. Rubin, 158 Cal.

Rptr. 488, 491 (Cal. App. 2d Dist. 1979) (combining incitement and solicitation cases);

Christensen v. State, 468 S.E.2d 188, 190 (Ga. 1996).

231

Rohr, supra note 77, at 27–29 (citing City of Baton Rouge v. Ross, 654 So.2d 1311

(La. 1995)).

232

Rice v. Paladin Enters., Enterprises, Inc., 128 F.3d 233, 244 (4th Cir. 1997); Gomez

v. Giurbino, SACV040035JVSFMO, 2007 WL 9706770, at *2 (C.D. Cal. Mar. 21, 2007),

aff’d, 405 Fed. Appx. 245 (9th Cir. 2010) (unpublished).

233

Rubin, 158 Cal. Rptr. at 492.

234

United States v. Freeman, 761 F.2d 549, 552 (9th Cir. 1985) (“the First Amendment

is quite irrelevant if the intent of the actor and the objective meaning of the words used are

so close in time and purpose to a substantive evil as to become part of the ultimate crime

itself.”).

235

White, 610 F.3d at 960–62.

236

Id. (citing United States v. Sattar, 272 F. Supp.2d 348, 373–74 (S.D.N.Y. 2003)).

2019] INCITEMENT IN THE ERA 621

The Third Circuit has also held that criminal solicitation constitutes an

unlawful “speech-act” to which Brandenburg does not apply.

237

Likewise,

a district court in Michigan found that speech that “goes beyond mere

advocacy and constitutes an actual conspiracy to use force” is not covered

by Brandenburg.

238

Other courts have differentiated between solicitation and advocacy by

reference to whether the speech has a political or ideological motivation:

Advocacy is the act of “pleading for, supporting, or

recommending; active espousal” and, as an act of public

expression, is not readily disassociated from the arena of

ideas and causes, whether political or academic.

Solicitation, on the other hand, implies no ideological

motivation but rather is the act of enticing or importuning

on a personal basis for personal benefit or gain.

239

Similarly, according to the Seventh Circuit, Brandenburg does not

apply to criminal solicitation; it applies to politically “impassioned” speech

that, while perhaps containing some references to violence or unlawful

acts, does not contain threats or authorizations to commit violence.

240

Therefore, the Seventh Circuit found that as long as words go beyond

“mere advocacy,” they do not receive First Amendment protection.

241

This

distinction is identical to that in incitement cases.

237

United States v. Bell, 414 F.3d 474, 482 (3d Cir. 2005). For this reason, according

to a district court in Texas, criminal solicitation is “simply not protected by the First

Amendment, even if the only acts committed were communications with others.” Ballard v.

United States, CR 13-00067-01, 2016 WL 7439350, at *2 (N.D. Tex. Dec. 22, 2016). See

also Daniel Hoffman, Online Terrorism Advocacy: How Aedpa and Inchoate Crime

Statutes Can Simultaneously Protect America’s Safety and Free Speech, 2 NAT’L SEC. L.J.

200, 211–12 (2014) (Contrasting “inchoate crimes such as conspiracy, attempt, and

solicitation,” which do not have to satisfy Brandenburg, from speech “advocating crime

without some level of political or social promotion,” which will not meet Brandenburg’s

requirements for First Amendment protection).

238

United States v. Stone, No. 2:10-CR-20123, 2011 WL 795104, at *7–8 (E.D. Mich.

Jan. 12, 2011), report and recommendation adopted, 10-20123, 2011 WL 795164 (E.D.

Mich. Mar. 1, 2011).

239

Rohr, supra note 77, at 27–29. See also City of Baton Rouge v. Ross, 654 So.2d

1311, 1337 (La. 1995) (“The Supreme Court has also addressed itself to the criminalization

of political speech advocating unlawful conduct, a manner of speech which, when deprived

of its political character, is indistinguishable from criminal solicitation.”).

240

White, 610 F.3d at 960–62.

241

Id. at 962.

622 CAPITAL UNIVERSITY LAW REVIEW [47:585

White is also notable because it emphasized that context is important

because the solicitation could be made using implicit or coded speech.

242

In criminal solicitation cases, the jury is permitted to look at the

defendant’s words and infer his meaning even if he did not request

criminal activity outright.

243

In such a situation, a defendant’s other

statements that appear to indicate that he did not want to engage in

criminal activity are left for the jury to interpret and do not diminish the

potential character of his incriminating statements.

244

For example, in

United States v. Stewart, the Second Circuit found that a “spiritual” leader

of al-Gama'a, an Egyptian Sunni Islamist movement, incited his followers

to violence by withdrawing his support of a cease-fire in Egypt.

245

The

Second Circuit looked beyond the words spoken by the defendant, which

appeared, on the surface, to merely express a political opinion.

246

According to the Second Circuit, because his “comments were made in

direct response to solicitations of his views from other al-Gama' members

who were seeking to effect an end to the cease-fire and to resume

violence,” the defendant’s withdrawal of support was “not materially

different in substance from a crime boss making decisions about his

criminal enterprise from prison and ordering a ‘hit.’”

247

Crump provides an accessible example of coded words with his

description of a crime boss’s statement to his enforcer that “I don't like

Tony Bananas. Why don't you go ‘visit’ with him?”

248

Despite the actual

words used, the context of the statement, not to mention the relationship

between the crime boss and his enforcer, gives the words a clear meaning:

solicitation of murder.

249

According to Crump, ignoring the coded

messages and allowing this kind of speech would encourage organized

criminals to continue their operations.

250

Instead, according to Crump, if

the threat is communicated “in a code that the court can crack . . . the court

should not ignore the real message.”

251

Greenawalt has likewise indicated that context in solicitation cases

matters. According to Greenawalt, the power balance between the speaker

242

Id. at 960–62.

243

Id. (citing United States v. Hale, 448 F.3d 971, 979 (7th Cir. 2006)).

244

Id.

245

United States v. Stewart, 590 F.3d 93, 115–16 (2d Cir. 2009).

246

Id.

247

Id.

248

Crump, supra note 69, at 23–25.

249

Id.

250

Id.

251

Id. at 55.

2019] INCITEMENT IN THE ERA 623

and the audience should be considered because “in circumstances when the

person soliciting is the more dominant personality, it would be unfair to

convict the perpetrator and let the person who effectively controls him go

free.”

252

Accordingly, although not identical,

253

solicitation cases provide

valuable examples of how context and coded messages can be examined in

incitement cases.

Both Trump and the Unite the Right rally organizers arguably used

coded messages to instruct their audiences. As noted above, Trump had

used the phrase “get ‘em outta here” at a prior rally where violence had

occurred.

254

That phrase could be reasonably interpreted by his audience to

mean that they should use force when ejecting the protestors in Louisville.

The organizers of the Unite the Right rally also used inside jokes, memes

and coded references to instruct their followers and push for a violent

confrontation.

255

They even had code phrases––Plan Green, Plan Yellow,

and Plan Red––for the different tactics that they would use depending on

their success at obtaining the permits they wanted.

256

The organizers were

very aware of the likely media presence at the rally and advised their

followers to “refrain from roman salutes” because of the cameras.

257

Both

Trump and the alt-right’s coded language present further evidence that the

exact words they used must be placed in a broader context to know what

their audience actually heard and understood.

252

GREENAWALT, supra note 66, at 1111.

253

For example, solicitation does not rely on any reaction from the intended audience;

even purely verbal solicitation is complete as soon as the request is made, even if the

audience rejects the request. See Gomez v. Giurbino, 2007 WL 9706770, at *2 (Mar. 21,

2007), aff’d, 405 Fed. Appx. 245 (9th Cir. 2010) (unpublished) (quoting People v. Wilson,

36 Cal.4th 309, 328 (2005), cert. denied, 126 S. Ct. 1617 (2006)). Solicitation also does not

have an imminence requirement. See Volokh, supra note 226, at 995.

254

Tina Nguyen, Trump’s Violent Campaign Rallies Come Back to Haunt Him, VANITY

FAIR (May 2, 2017, 5:41 PM), https://www.vanityfair.com/news/2017/05/donald-trump-

campaign-rally-lawsuits-incitement [https://perma.cc/A2DW-S8CP].

255

The alt-right is notorious for its use of code words and insider slang. See Vanessa

Romo, “Ghost Skins” And Masculinity: Alt-Right Terms, Defined, NPR (Sep. 6, 2017, 3:31

PM), https://www.npr.org/2017/09/06/548858850/-ghost-skins-and-masculinity-alt-right-

terms-defined [https://perma.cc/M77N-7XFZ]; Nikhil Sonnad, et al., The alt-right is

creating its own dialect. Here’s the dictionary, QUARTZ (Oct. 30, 2017),

https://qz.com/1092037/the-alt-right-is-creating-its-own-dialect-heres-a-complete-guide/

[https://perma.cc/3JZG-5CYK]; Justin Caffier, Get to Know the Memes of the Alt-Right and

Never Miss a Dog-Whistle Again, VICE (Jan. 25 2017, 2:11 PM),

https://www.vice.com/en_us/article/ezagwm/get-to-know-the-memes-of-the-alt-right-and-

never-miss-a-dog-whistle-again [https://perma.cc/YX7H-TBMS].

256

Operation Unite the Right Charlottesville 2.0, supra note 162, at 6–7.

257

Id. at 5.

624 CAPITAL UNIVERSITY LAW REVIEW [47:585

VI. INTENT

The final requirement for incitement is intent. As with imminence and

advocacy, both courts and scholars have grappled with what intent is

actually required to create incitement.

A. General Definition

According to the Supreme Court of California, “incited

violence . . . must be a specifically intended consequence of the speaker’s

plea and not a result of unreasonable reactions by hostile onlookers or

overly zealous supporters.”

258

Otherwise, the unruliness of the audience

may silence speech merely because the speaker is discussing controversial

issues, resulting in the so-called “hecklers veto.”

259

However, the failure to

name a specific victim is not fatal to an incitement claim.

260

In his eight-factor test, Crump has identified two aspects of intent:

knowledge and disclaimers.

261

Crump likens “knowledge” to the “actual

malice” standard in defamation cases––intent is shown from knowledge or

reckless disregard.

262

To that end, according to Crump, the inclusion of

disclaimers should work against a finding of intent, presuming that those

disclaimers are genuine.

263

As with the incitement language itself, courts

should examine the wording and context of the disclaimers to discern

whether they were said with a wink, like Mark Anthony’s speech.

264

Courts have also generally taken a broad view of intent in incitement

cases. A California court of appeals defined intent as speech that “(1) was

directed and intended toward the goal of producing imminent lawless

conduct and (2) was likely to produce such a result.”

265

In Rubin, another

California court of appeal has emphasized looking at the emotional state of

the crowd, holding that when a speaker urges political assassination in

front of a large unruly crowd, the “the threat to civil order” is great despite

the speaker’s actual intent.

266

The Court in Rubin emphasized that the

258

Braxton v. Mun. Ct., 514 P.2d 697, 703 (Cal. 1973).

259

Calvert, supra note 83, at 124; Bill v. Super. Ct., 187 Cal. Rptr. 625, 629 (Cal. App.

1st Dist. 1982).

260

People v. Rubin, 158 Cal. Rptr. 488, 488, 493 (Cal. App. 2d Dist. 1979).

261

Crump, supra note 69, at 63.

262

Id.

263

Id. at 66.

264

Id. at 66–67.

265

McCollum v. CBS, Inc., 249 Cal. Rptr. 187, 193 (App. 1988) (emphasis added).

This article has taken the “likelihood” aspect of this definition and applied it to the

imminence requirement.

266

People v. Rubin, 158 Cal. Rptr. 488, 490–91 (Cal. App. 2d Dist. 1979).

2019] INCITEMENT IN THE ERA 625

“words and circumstances” of the speech are essential to determine the

speaker’s intent, particularly if the speech was “not made in a jesting or

conditional manner, nor was it the outcome of an improvised piece of

braggadocio.”

267

Positive reference to prior acts of violence likewise can

show a speaker’s intent to incite a crowd.

268

Using a very broad interpretation of the intent requirement, in Weirum

v. RKO General Inc., a Georgia court found that a radio station was found

to have committed incitement with its dangerous radio contest because it

“intentionally created the dangerous circumstances” even though there was

no evidence that the station wanted anyone to be harmed, and certainly did

not single out a target for harm.

269

Greenawalt likewise emphasizes context in relation to whether

violence is likely to erupt:

Sometimes a serious intent would be evident from the

circumstances of the communication and its content. If a

speaker urges young men to turn in their draft cards at a

meeting called for that purpose, the inference is irresistible

that he seriously intends his listeners to do just that. In

other circumstances, if words used by the speaker yield the

natural interpretation that he is urging commission of a

specific crime, external evidence may demonstrate the

speaker’s serious intent.

270

The case Greenawalt is referring to, United States v. Spock, emphasized

that the speakers’ “soft sell” of the illegal burning of draft cards was not

just an expression of “sympathy and support,” in part because they were

speaking to “a large number of young men, perhaps impressionable, and in

any event oriented in defendants’ direction by natural self-interest.”

271

Greenawalt has therefore argued that evidence of intent should include

external evidence of prior statements from the speaker that indicate they

intended to stir up a crowd, as well as the amount of the speaker’s

influence over the crowd.

272

Using those factors, it is clear that Trump’s prior statements are

essential to understanding his meaning during the Louisville rally, as is the

267

Id. at 493.

268

Id.

269

Crump, supra note 69, at 41–42 (citing Weirum v. RKO General, Inc., 539 P.2d 36

(1975)).

270

GREENAWALT, supra note 66, at 266–67.

271

United States v. Spock, 416 F.2d 165, 171–72 (1st Cir. 1969).

272

GREENAWALT, supra note 66, at 274.

626 CAPITAL UNIVERSITY LAW REVIEW [47:585

general atmosphere of those rallies. Violence at Trump rallies during his

presidential campaign was commonplace and well-documented by the

media, often using video taken by audience members. Audience violence

towards protestors at Trump rallies began as early as October 2015 at a

Richmond, Virginia rally where audience members ripped a signs out of a

protestors’ hands and one audience member spat in a protestor’s face.

273

Violence towards protestors became more frequent and commonplace over

time.

274

Although at first Trump told his supporters to not harm protestors,

275

beginning in about November 2015, Trump began to encourage and

support violence at his rallies. A Black Lives Matter protestor at a

November 21, 2015 rally in Birmingham, Alabama was punched and

choked after Trump said, “get him the hell out of here.”

276

The protestor

was removed by security and Trump later defended the crowd’s violence

on Fox News, saying that “maybe he should have been roughed up because

it was absolutely disgusting what he was doing.”

277

Before the Louisville rally, Trump made several other statements that

indicated his support of audience members using violence against

protestors at his rallies, including “I don’t know if I'll do the fighting

myself or if other people will,”

278

“If you see somebody with a tomato,

knock the crap out of them,”

279

and “I’d like to punch him in the face.”

280

After the Louisville rally, Trump’s rhetoric became a little more moderate

but not much: “Try not to hurt him. If you do, I’ll defend you in court,

don’t worry about it,”

281

“Can’t we have a little more action than

this? . . . See, in the good old days this didn’t use to happen, because they

273

Mathis-Lilley, supra note 208.

274

Id.

275

Johnson & Jordan, supra note 201.

276

Mathis-Lilley, supra note 208.

277

Johnson & Jordan, supra note 201.

278

Sommers-Dawes, supra note 212.

279

Daniel White, Donald Trump Tells Crowd to “Knock the Crap Out Of” Hecklers,

TIME (Feb. 1, 2016), http://time.com/4203094/donald-trump-hecklers/ [https://perma.cc/7JV

2-ZK2E] (The tomato thrown at the Iowa City rally seems to have been a turning point for

Trump, leading him to be more explicit in his encouragement of violence; by also offering

to “pay for any legal fees that supporters incurred stopping a tomato-thrower.”).

280

Jeremy Diamond, Donald Trump on protester: “I’d like to punch him in the face”,

CNN (Feb. 23, 2016, 11:59 AM), https://www.cnn.com/2016/02/23/politics/donald-trump-

nevada-rally-punch/index.html [https://perma.cc/JJU6-PRSB].

281

Cahn, supra note 204.

2019] INCITEMENT IN THE ERA 627

used to treat them very rough. . . . We’ve become very weak.”

282

“These

are people that are destroying our country. . . . You know part of the

problem and part of the reason it takes so long is no one wants to hurt each

other anymore and they’re being politically correct the way they take them

out so it takes a little longer,”

283

and, regarding an earlier statement where

he said he wanted to fight a protestor behind the gym in high school: “I’d

love that.”

284

Moreover, although he probably did not like being interrupted by

protestors, Trump seemed to enjoy the disruptions at his rallies because

they riled up the crowds. In fact, Trump repeatedly insulted protestors for

being “weak” and not resisting being ejected.

285

At a rally in Bridgeport,

Connecticut in April 2016, Trump talked about protestors’ disruptions

positively: “[t]hey waste our time, but they make it

interesting . . . . ‘What’s more fun than a Trump rally?’”

286

He said this

while the protestor was placed in a chokehold by a police officer.

287

Trump further encouraged violence by not only saying he would like to

fight protestors but also repeatedly promising to pay audience members’

legal fees if they hurt a protestor. At least two Trump audience members

were charged with assault for physically attacking protestors.

288

Moreover,

Trump has occasionally called out people individually, either by gesturing

282

David A. Graham, The Lurking Menace of a Trump Rally, THE ATLANTIC (Mar. 10,

2016), https://www.theatlantic.com/politics/archive/2016/03/donald-trump-fayetteville/473

169/ [https://perma.cc/VKH9-P4BJ].

283

Candace Smith, Clashes Erupt Outside Donald Trump’s Missouri Rally, ABC NEWS

(Mar. 11, 2016, 7:23 PM), https://abcnews.go.com/Politics/donald-trumps-missouri-rally-

interrupted-minutes-protesters/story?id=37584726 [https://perma.cc/SGW2-F52Y].

284

Ali Vitali, Donald Trump Says He’d ‘Love’ to Fight ‘Mr. Tough Guy’ Joe Biden,

NBC NEWS (Oct. 25, 2016, 9:04 PM), https://www.nbcnews.com/politics/2016-

election/donald-trump-says-he-d-love-fight-mr-tough-guy-n672871 [https://perma.cc/27YP-

85ZB].

285

Jackson, supra note 200.

286

Dennis Slattery, Anti-Trump protester put in chokehold by cop, dragged from

Connecticut rally, N.Y. DAILY NEWS (Apr. 23, 2016, 2:23 PM), http://www.nydailynews.

com/news/election/anti-trump-protester-choked-yanked-connecticut-rally-article-1.2612160

[https://perma.cc/S26A-N2Z9].

287

Id.

288

Id. There is no evidence that Trump has actually paid their legal fees and ample

evidence that he is unlikely to. See, Steve Reilly, Hundreds allege Donald Trump doesn’t

pay his bills, USA TODAY (Apr. 25, 2018, 1:42 PM), https://www.usatoday.com/story/news

/politics/elections/2016/06/09/donald-trump-unpaid-bills-republican-president-laswuits/852

97274/ [https://perma.cc/228Q-GJXL] (discussing Trump’s failure to pay legal fees to law

firms who have represented him in the past).

628 CAPITAL UNIVERSITY LAW REVIEW [47:585

to them

289

or using their names

290

while they were in the midst of his crowd

of supporters, making it much easier to target them specifically.

Even without violence, Trump rallies were typically loud and

boisterous, with audience members chanting and shouting in support for

Trump and against Trump’s popular targets such as Hillary Clinton.

291

Trump appears to have reveled in these outbursts, and he even commanded

the crowd to raise their hands and say a pledge that they would vote for

him.

292

He promised them that “bad things happen” if they did not follow

through with their pledge.

293

Trump’s command over his audience shows

that he knew that they would follow his orders.

However, Trump’s reaction to protestors was also inconsistent; during

this same time period he appeared to be kinder to protestors and

specifically stated that he did not want them hurt.

294

Trump’s attorneys

appear to be making a disclaimer argument by arguing that Trump’s

statements to not hurt the protestors, which he also made at the Louisville

rally, should be evidence that Trump did not intend there to be violence at

his rallies.

295

Trump did say not to hurt protestors at several rallies.

296

However, he

also complained that not hurting protestors made their ejection take

289

Gina Martinez, The Inside Story of a Trump Volunteer Blocking a Photographer at a

Rally, TIME (Aug. 31, 2018 4:33 PM), http://time.com/5384111/trump-volunteer-blocks-

camera-photo/ [https://perma.cc/DSX6-ZEGR].

290

Tur, supra note 215.

291

Ashley Parker et al., Voices From Donald Trump’s Rallies, Uncensored, N.Y. TIMES

(Aug. 3, 2016), https://www.nytimes.com/2016/08/04/us/politics/donald-trump-suppo

rters.html [https://perma.cc/UG7P-G5MY]; Peter W. Stevenson, A brief history of the ‘Lock

her up!’ chant by Trump supporters against Clinton, WASH. POST (Nov. 22, 2016),

https://www.washingtonpost.com/news/the-fix/wp/2016/11/22/a-brief-history-of-the-lock-

her-up-chant-as-it-looks-like-trump-might-not-even-try/?utm_term=.8331fc301421 [https://

perma.cc/J9M2-FSL6].

292

Jeremy Diamond & Eugene Scott, Trump asks backers to swear their support, vows

to broaden torture laws, CNN (Mar. 5, 2016, 6:43 PM), https://www.cnn.com/

2016/03/05/politics/donald-trump-florida-pledge-torture/index.html [https://perma.cc/DX8

C-R3V8].

293

Id.

294

See id. (discussing he will bring people together); Emily Shapiro, Trump Surrounded

by Secret Service as Man Tries Rushing Stage, ABC NEWS (Mar. 12, 2016, 3:20 PM),

https://abcnews.go.com/Politics/donald-trump-calls-protests-chicago-rally-planned-attack/st

ory?id=37601079 [https://perma.cc/64E2-3E2H] (“I was ready for him, but it’s much easier

if the cops do it, don’t we agree?”); Canon et al., supra note 206 (“we don’t want to hurt

protestors”); Slattery, supra note 286 (“They waste our time, but they make it interesting.”).

295

McLaughlin, supra note 13.

296

See Cahn, supra note 204; Canon et al., supra note 206; Emily Flitter, Young

Protesters heckle Trump during Michigan speech, REUTERS (Dec. 22, 2015, 12:02 AM),

(continued)

2019] INCITEMENT IN THE ERA 629

longer,

297

insulted protestors for not fighting more when they were being

ejected,

298

offered to pay the legal fees of those who did hurt protestors,

299

and lamented “the old days” where protestors would be roughed up

300

and

“carried out on stretchers.”

301

Trump also told one crowd that he tells

security not to hurt protestors “for the benefit of the media.”

302

This

statement combined with his offers to pay legal fees, indicates that Trump

was well aware of the consequences of violence at his rallies and may have

given his disclaimer with a wink, negating its value for purposes of

determining intent. Taking all of Trump’s statements, the repeated

violence at his rallies, and the general mob-like atmosphere he encouraged,

it is likely that these contextual clues will be sufficient to show Trump’s

intent to incite the crowd.

As with imminence, the intent of the Unite the Right rally organizers is

a little more difficult to discern because they made their communications

over the internet, which can sometimes cloud a speaker’s actual

meaning.

303

However, by looking at the context of the organizers’

statements, their intent becomes very clear. The true threats doctrine

provides several examples of how context can be used to determine a

speaker’s intent even over the internet.

B. True Threats

The “true threats” doctrine is a useful point of comparison to

incitement cases because it has been used as an alternative to incitement to

overcome First Amendment protections. The concept of “true threats,”

although used by courts for decades,

304

was finally defined by the Supreme

Court in 2003 in Virginia v. Black. According to Black, true threats

“encompass those statements where the speaker means to communicate a

serious expression of an intent to commit an act of unlawful violence to a

https://www.reuters.com/article/us-usa-election-trump-idUSKBN0U50D020151222 [https:/

/perma.cc/8D8W-G5B2].

297

Smith, supra note 283.

298

Jackson, supra note 200.

299

Cahn, supra note 204.

300

Id.

301

Diamond, supra note 280.

302

Jackson, supra note 200.

303

Sara Peters, Why is sarcasm so difficult to detect in texts and emails? THE

CONVERSATION (Mar. 8, 2018, 6:43 AM), http://theconversation.com/why-is-sarcasm-so-

difficult-to-detect-in-texts-and-emails-91892 [https://perma.cc/A489-X7E3].

304

For a history of the “true threats” doctrine, see Paul T. Crane, “True Threats” and

the Issue of Intent, 92 VA. L. REV. 1225 (2006).

630 CAPITAL UNIVERSITY LAW REVIEW [47:585

particular individual or group of individuals.”

305

In order to be a true

threat, a speaker must “direct[] a threat to a person or group of persons

with the intent of placing the victim in fear of bodily harm or death” but

the “speaker need not actually intend to carry out the threat.”

306

The rationale for the true threat doctrine is similar to that for

incitement: true threats do not contribute to the marketplace of ideas and

prohibiting them protects the public.

307

True threats are not like typical

speech that conveys ideas or opinions that enrich public discourse.

Instead, like incitement and solicitation, they “operate[] more like a

physical action”

308

and cause fear and disruption.

309

Indeed, according to

scholar Steven Gey, a statement is a true threat, and therefore deserves no

First Amendment protection, if it is “clear from the context that the

communication effectively operates, and is intended to operate, as

something other than an attempt to engage in the exchange of ideas,

thoughts, attitudes, or emotions.”

310

But the threat does need to be more

than “political hyperbole.”

311

As noted by Volokh, “[t]he Court has said

that, to be punishable, a threat of illegal conduct must be a ‘true threat,’

rather than obvious hyperbole or humor, but that is more just a reminder

that threats must indeed be threatening.”

312

For example, in United States v. Watts, a Vietnam War protestor’s

statement that “[i]f they ever make me carry a rifle the first man I want to

get in my sights is L. B. J” was not a “true threat” despite its threatening

tone because it was considered to be political hyperbole.

313

As with

incitement in Brandenburg, the statement in Watts was conditional:

violence will occur if a condition is met.

As with solicitation, courts seem willing to use true threats and

incitement somewhat interchangeably, applying one where, factually, the

other seems to be more apt. For example, Claiborne was not analyzed

under a true threats framework even though Evers appeared to be speaking

his threatening language directly to those he intended to intimidate.

314

305

Virginia v. Black, 538 U.S. 343, 359 (2003).

306

Id. at 360.

307

Crane, supra note 304, at 1230–31.

308

Gey, supra note 72, at 565–98.

309

Crane, supra note 304, at 1230–31.

310

Gey, supra note 72, at 594.

311

Strasser, supra note 12, at 177 (quoting United States v. Watts, 394 U.S. 705, 706

(1969)).

312

Volokh, supra note 226, at 1005–06.

313

Watts v. United States, 394 U.S. 705, 706 (1969).

314

See Rohr, supra note 77, at 23–24; Volokh, supra note 226, at 1005–06.

2019] INCITEMENT IN THE ERA 631

Similarly, the true threats doctrine has been applied to speech that appears

to be more akin to incitement because it was directed towards others, not

the speaker’s actual target. More specifically, in Planned Parenthood of

Columbia/Willamette, Inc. v. American Coalition of Life Activists, a Ninth

Circuit en banc panel used the true threats doctrine to examine an anti-

abortion group’s tactics of circulating “GUILTY” posters of the plaintiff

doctors with their names, addresses and photographs, as well as the

“Nuremburg Files” website, which compiled names of doctors that the

anti-abortion group “anticipated one day might be put on trial for crimes

against humanity.”

315

Previously, this group had circulated posters with

the titles “WANTED” and “unWANTED,” the latter group referring to

abortion doctors who had been murdered.

316

In its decision, the Ninth Circuit briefly mentioned incitement,

indicating that the speech at issue differed from merely advocating

violence, but then turned its attention directly to true threats, using a

federal threats statute.

317

According to the Ninth Circuit, although the

posters were publicly distributed, and were arguably calling for others to

commit violence against their targets, the website and other tactics were

“true threats” because they targeted the specific plaintiffs and the

defendants knew the plaintiffs would be put in fear, which they were.

318

Indeed, the naming of specific people as targets rather than larger groups

seems to be key in true threats cases. Although threats against an entire

race, for example, are certainly offensive, the diffuse nature of targets

makes the members of the group much less likely to be actually or

reasonably afraid.

Similar to Planned Parenthood, the Seventh Circuit in United States v.

Turner eschewed an incitement analysis in favor of the true threats

doctrine.

319

Turner’s statements were a series of blog posts threatening

violence against the three Seventh Circuit judges who upheld a Chicago

gun ban.

320

Some of Turner’s more violent statements included “[l]et me

be the first to say this plainly: These Judges deserve to be killed. Their

blood will replenish the tree of liberty. A small price to pay to assure

freedom for millions,” and “[t]hese Judges deserve to be made such an

315

Planned Parenthood of Columbia/Willamette, Inc. v. Am. Coalition of Life Activists,

290 F.3d 1058, 1062 (9th Cir. 2002).

316

Id.

317

Id. at 1072 (“If ACLA had merely endorsed or encouraged the violent actions of

others, its speech would be protected.”).

318

Id. at 1085–86.

319

United States v. Turner, 720 F.3d 411, 425 (2d Cir. 2013).

320

Id. at 414.

632 CAPITAL UNIVERSITY LAW REVIEW [47:585

example of as to send a message to the entire judiciary: Obey the

Constitution or die.”

321

Turner’s blog also contained threats against other

government officials: “I intend to incite revenge . . . Vicious, brutal,

savage, revenge with malice aforethought.”

322

Finally, Turner stated his intent for his blog posts: “[w]hile I can't

legally undertake killing, I may—just MAY—be able to say enough of the

right things, to enough of the right people, to make it happen.”

323

Turner

sent emails to officials with similar sentiments.

324

The Seventh Circuit

found Turner’s statements to be threats under the same federal statute used

in Planned Parenthood because he referenced prior acts of violence against

judges and implied a causal connection between those acts and his calls for

the target’s death.

325

Turner’s doxing

326

of the judges also made his words a threat, as did

his stated intent to make them change their stance in response to his

threats.

327

Finally, Turner’s effort to characterize the case as incitement

rather than a true threat because his words were directed at the public (and

potential assassins) rather than the judges themselves did not persuade the

Seventh Circuit because the public nature of his blog posts were likely to

put the judges in greater fear:

It is hard to see how Turner's threat became less

threatening, however, because publicly issued—

particularly given Turner’s own boasting that public

dissemination of address information is “an effective way”

to instill fear, “to cause otherwise immune public servants

to seriously rethink how they use the power lent to them

by We The People.”

328

The Third Circuit case United States v. Fullmer, adopted a similar

analysis to Planned Parenthood and Turner. An animal rights group used

a website to advocate for protests against animal testing facilities, whether

321

Id. at 415.

322

Id. at 416.

323

Id. at 417.

324

Id.

325

Id. at 422.

326

Jasmine McNealy, Commentary: What is doxxing, and why is it so scary?, CHI.

TRIB. (May 21, 2018, 5:00 AM), http://www.chicagotribune.com/news/opinion/commentar

y/ct-perspec-doxxing-web-site-internet-facebook-private-information-emails-comments-pri

vate-data-0521-story.html [https://perma.cc/A5HU-XYLC].

327

Turner, 720 F.3d at 422.

328

Id. at 423.

2019] INCITEMENT IN THE ERA 633

the protests were legal or not.

329

The website also targeted specific

employees by providing their names and addresses along with the word

“target” with words encouraging contacting those employees to protest and

included an article entitled “Top 20 Terror Tactics” that listed ways to

harass others and included physical assault and damaging their property.

330

As in Planned Parenthood, the Third Circuit used the true threats doctrine

to analyze the tactics used by the defendants.

331

In particular, the doxxing

of the employees, like the doxxing in Planned Parenthood was a true

threat because it was combined with references to past acts of violence

against the group’s targets.

332

However, the Third Circuit also applied the incitement doctrine. The

Third Circuit found that the defendant’s webpages did not constitute

incitement because

merely posting information on unlawful acts that have

already occurred, in the past, does not incite future,

imminent unlawful conduct . . . [and] the publication of the

“Top Twenty Terror Tactics,” without more, is also

protected, because although it lists illegal conduct, there is

no suggestion that [the defendant] planned to imminently

implement these tactics. . . .

333

But, unlike in Planned Parenthood or Turner, Fullmer did find

incitement in the website’s instructions on how to carry out virtual sit-ins,

even though the defendants knew that electronic civil disobedience is

unlawful.

334

More importantly, an email from the group to its supporters

urging them to “participate in electronic civil disobedience at a specified

time . . . encouraged and compelled an imminent, unlawful act that was not

only likely to occur, but provided the schedule by which the unlawful act

was to occur.”

335

Upon examining these three cases, it is understandable that the true

threats doctrine has been used more successfully by prosecutors than

incitement; its requirements are easier to satisfy. As a result of these easier

requirements, cases that appear to be incitement have repeatedly been

329

United States v. Fullmer, 584 F.3d 132, 156 (3d Cir. 2009).

330

Id. at 163.

331

Id.

332

Id.

333

Id. at 155.

334

Id.

335

Id. (The specific time set for the protest is also applicable to the imminence standard

for incitement).

634 CAPITAL UNIVERSITY LAW REVIEW [47:585

analyzed under the true threats doctrine so that even communications that

are directed towards third parties to commit violence, which seems like

quintessential incitement, are instead treated like communications––

threats––towards the victims.

336

The largest difference between incitement and true threats, and the one

that makes true threats easier to apply, is that true threats have no

imminence requirement. For example, in Planned Parenthood, the Ninth

Circuit did not examine the timing of the issuance of the posters or the

Nuremburg website. Similarly, Turner’s blog posts did not discuss any

timeframe for his threats.

337

However, other courts have imputed an

imminence requirement into true threats by requiring that the threat be “so

unequivocal, unconditional, immediate and specific as to the person

threatened, as to convey a gravity of purpose and imminent prospect of

execution.”

338

This imminence standard further muddies the distinction

between true threats and incitement.

Indeed, the Tenth Circuit has explicitly refused to make a firm

distinction between true threats and incitement, stating that “no court has

suggested that the categories of unprotected speech are completely distinct

from one another.”

339

Therefore, according to the Tenth Circuit, even if

someone’s statements are clearly made intending to incite others to commit

violence on the speaker’s behalf, the statements can also be true threats and

therefore not subject to Brandenburg’s requirements.

340

Marc Rohr has

encouraged the overlap of incitement of threatening words, arguing that

“threat” should not be interpreted so “woodenly” so that someone must

merely make their threats sound like exhortations in order to have their

threats protected by Brandenburg.

341

The true threats standard also does not dictate how the defendant’s

intent or knowledge should be determined. More specifically, the Supreme

Court has continued to fail to provide an intent standard for true threats,

336

Pew, supra note 188, at 1094–95.

337

United States v. Turner, 720 F.3d 411, 421–22 (2d Cir. 2013).

338

Volokh, supra note 226, at 1005–06 (However, Volokh argues that “presumably a

threat to do something specific at some time in the future (e.g., ‘if you vote to form a union,

we’ll fire you,’ even when the vote won’t be for some months) would still be punishable.”).

339

United States v. Wheeler, 776 F.3d 736, 745 (10th Cir. 2015).

340

Id. at 744–45

341

Marc Rohr, “Threatening” Speech: The Thin Line Between Implicit Threats,

Solicitation, and Advocacy of Crime, 13 RUTGERS J.L. & PUB. POL’Y 150, 166–67 (2015).

2019] INCITEMENT IN THE ERA 635

and Circuit courts have struggled with whether true threats require an

objective or subjective intent standard.

342

The Supreme Court’s most recent true threats case, Elonis v. United

States, did little to clarify the intent requirements for threats.

343

Elonis

involved a man cyber-stalking and threatening a co-worker and his

estranged wife (through her sister’s Facebook page), leading to his

conviction under a federal threats statute.

344

The Supreme Court refused to

address the case’s First Amendment issues, instead reversing Elonis’

conviction on the grounds that the statute impermissibly failed to specify a

mens rea requirement for criminal threats.

345

Consequently, all Elonis has

done is create a requirement for some kind of intent but no guidance on

what that intent should be or whether it should be subjective or objectively

determined. Indeed, the Supreme Court has not stated whether actual

intent or knowledge is sufficient.

346

In the absence of such guidance, some courts have placed an objective

standard on the true threats doctrine: “whether a reasonable person would

foresee that the statement would be interpreted by those to whom the

maker communicates the statement as a serious expression of intent to

harm or assault.”

347

Scholars have argued that the objective standard is

most appropriate because it focuses on the target and whether they were

reasonably afraid, regardless of what the speaker subjectively intended.

348

However, Justice O’Connor’s definition of true threats in Virginia v.

Black appears to require a subjective intent: “True threats . . . encompass

those statements where the speaker means to communicate a serious

expression of an intent to commit an act of unlawful violence to a

particular individual or group of individuals. The speaker need not actually

intend to carry out the threat.”

349

Since Black, several courts have used a

subjective standard or “actual intent” standard: whether “the speaker or

author intended the speech as a threat of bodily harm.”

350

342

Jessica L. Opila, How Elonis Failed to Clarify the Analysis of “True Threats” in

Social Media Cases and the Subsequent Need for Congressional Response, 24 MICH.

TELECOMM. & TECH. L. REV. 95, 103–04 (2017).

343

Elonis v. United States, 135 S. Ct. 2001, 2012 (2015).

344

Id.

345

Id.

346

Volokh, supra note 226, at 1005.

347

D.C. v. R.R., 182 Cal. App.4th 1190, 1213, as modified (Apr. 8, 2010) (quoting

State v. DeLoreto, 827 A.2d 671, 679–681 (2003)).

348

Rohr, supra note 341, at 153–54.

349

Id.

350

D.C., 182 Cal. App.4th at 1213 (citing Fogel v. Collins, 531 F.3d 824, 831–833

(2008); United States v. Parr, 545 F.3d 491, 498–502 (2008)).

636 CAPITAL UNIVERSITY LAW REVIEW [47:585

To determine subjective intent, courts look at context, what the target

“knew about the defendant. . . . especially aspects of a defendant’s

background that have a bearing on whether his statements might

reasonably be interpreted as a threat.”

351

Indeed, context arguably matters

no matter which kind of intent is used. According to Marc Rohr, true

threats “need not be explicit.”

352

Moreover, if true threats are essentially

interchangeable with incitement, then the context factors used by courts in

true threats cases should apply to incitement cases as well.

The true threats doctrine presents a useful tool for understanding the

intent of the organizers of the Unite the Right rally. First, many of the true

threat cases involved webpages that advocated for violence against a group

of people and provide an analogy for the web activity that took place

before the Unite the Rights rally. Although the organizers did not doxx

specific targets, they did explicitly encourage violence against anticipated

protestors.

353

Second, the organizers also created a general us vs. them

mentality by placing the rally in the context of a larger war against other

races and religion, which also elevated the perceived importance of the

upcoming “battle.”

354

Finally, using the subjective standard, considering

the well-documented history of violence at white supremacist rallies, a

rational person would have taken the rally discussions as a threat.

Moreover, using an objective standard, the actual intent of the

organizers is evident in the violence they encouraged through their various

messages to their followers. As the General Orders show, the organizers

anticipated a fight at the rally and intended to be prepared to push back

against protestors.

355

Several comments posted in the days leading to the

rally indicate that followers were excited to beat up protestors and people

of color.

356

Some even talked about running over protestors.

357

The

organizers’ intent is even more obvious in their celebration of the violence

that occurred, including the murder of Heather Heyer.

358

No matter which

351

D.C., 182 Cal. App.4th at 1213.

352

Rohr, supra note 341, at 155.

353

Complaint, supra note 34, ¶¶ 96, 98. However, there is some evidence that the

Charlottesville organizers did have a “hit list” of local police and politicians. See It’s Going

Down, What You Need to Know About the Nazi Rally in Charlottesville, VA, IT’S GOING

DOWN (Aug. 4, 2017), https://itsgoingdown.org/need-know-nazi-rally-charlottesville-va/

[https://perma.cc/KGY4-R5GK].

354

Complaint, supra note 34, ¶ 98.

355

Operation Unite the Right Charlottesville 2.0, supra note 162.

356

Complaint, supra note 34, ¶¶ 111–12, 115.

357

Id. ¶ 239.

358

Id. ¶¶ 264, 266–69, 271–72.

2019] INCITEMENT IN THE ERA 637

standard is used, the context surrounding the organization of the

Charlottesville rally shows that the organizers intended to incite their

followers to commit violence.

VII. CONCLUSION

Although today’s modern “mob” differs immensely from its historical

counterparts in terms of organization and technology, the incendiary

atmosphere that was the focus of Brandenburg and the Court’s

corresponding fear of imminent violence has not changed since the days of

the Civil Rights Movement. Trump and Unite the Right are not anomalies,

divorced from the past; they are the natural evolution of modern-day mobs

and are just as (if not more) dangerous. The First Amendment does protect

offensive speech and unpopular political opinions but it does not overcome

the need for protecting public safety. Although largely dormant for some

time, violent rallies have recently become more commonplace and the

doctrine of incitement should therefore be revitalized and modernized for

rallies that take place in the era of 24-hour media coverage and social

media echo chambers.

Brandenburg’s definition of incitement, though left largely untouched

for the past several decades, has left too many uncertainties as to what

incitement means and has allowed courts to view incendiary speech too

narrowly and with too little a focus on the speech’s context. Focusing on

imminence, call to action, and intent, this article shows that courts can be

flexible when looking at Brandenburg’s requirements. More specifically,

the speaker’s words matter but to truly understand them, the circumstances

surrounding their utterance must be fully considered. Failure to do so will

only give a shield to those who seek to gain publicity and notoriety through

violence of their followers. The First Amendment was never intended to

protect such behavior.